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 official text of the opinion.


In the Supreme Court of Georgia



                                                  Decided: June 21, 2023


                     S23A0135. LEONARD v. THE STATE.


       BETHEL, Justice.

       Following a jury trial, Appellant Joshua Leonard was convicted

of malice murder and related crimes arising from the August 2010

shooting of Calvin Grimes, which resulted in Grimes’ death

approximately ten months later from complications related to

gunshot wounds. 1 On appeal, Leonard argues that the trial court



       1In January 2014, a Muscogee County grand jury indicted Leonard and
co-defendant Jarvis Alexander for malice murder (Count 1), felony murder
predicated on aggravated assault (Count 2), two counts of aggravated assault
(Counts 3 and 4), aggravated battery (Count 5), and possession of a firearm
during the commission of a felony (Count 6). Leonard was charged individually
with possession of marijuana with intent to distribute (Count 7). Leonard and
Alexander were tried jointly before a jury from October 27 to November 3,
2014. Leonard was found guilty of all counts. Alexander was found guilty of
the counts with which he was charged, but his case is not part of this appeal.
      The trial court sentenced Leonard to serve life in prison for malice
murder (Count 1), five years in prison consecutive for possession of a firearm
during the commission of a felony (Count 6), and ten years in prison concurrent
for possession of marijuana with intent to distribute (Count 7). The trial court
erred in five respects and that he was prejudiced by the cumulative

effect of those errors. As discussed below, Leonard’s claims fail, so

we affirm.

      1. Viewed in the light most favorable to the verdicts, see

Jackson v. Virginia, 

 (III) (B) (

, 61

LE2d 560) (1979), the evidence adduced at trial showed as follows.

Around 10:00 p.m. on August 19, 2010, Columbus Police

Department officers were dispatched to the parking lot of an

apartment complex on a report of gunshots. Upon arrival, the

officers observed a parked vehicle with its engine running; Grimes,

who was bleeding profusely, was in the driver’s seat making

“gurgling” noises but did not speak. Grimes was transported to a

hospital with multiple gunshot wounds.



purported to merge the felony murder count into Count 1, but the felony
murder count was actually vacated by operation of law. See Malcolm v. State,

 (4) (

) (1993). The trial court also merged
the aggravated assault counts and the aggravated battery count.
       Leonard filed a timely motion for new trial on November 20, 2014, which
he amended through new counsel on January 28, 2020. After a hearing, the
trial court denied Leonard’s motion for new trial as amended. Leonard filed a
timely notice of appeal, and his appeal was docketed in this Court to the term
beginning in December 2022 and submitted for a decision on the briefs.
                                      2
     Officers recovered eleven spent shell casings around Grimes’s

vehicle; the casings were of two calibers—.22-caliber and .40-caliber.

Bullet holes indicated that shots were fired from outside the vehicle,

and based on the locations where the shell casings were found, it

appeared that a shooter exited the vehicle while rapidly firing shots.

Officers were unable to locate any witnesses.

     As a result of a gunshot wound to his neck, Grimes “sustained

a very high spinal cord injury,” rendering him a quadriplegic, and

he required a ventilator to breathe, among other life-sustaining

treatments. After the shooting, Grimes was sedated for several

weeks, regaining consciousness in early October. Though Grimes

remained dependent upon a ventilator, he ultimately regained the

ability to speak after a valve was installed in his trachea.

     After regaining consciousness in October 2010 and on several

occasions preceding his death, Grimes communicated to family

members, friends, and an investigating detective that Leonard and

Alexander were responsible for shooting him. As discussed in

Division 2 below, the trial court admitted testimony at trial

                                  3
regarding these statements as dying declarations. Grimes’s

girlfriend testified that the first thing Grimes communicated to her

upon waking was that “Doo-Doo” and “Josh” shot him. Grimes’s

girlfriend was familiar with both men, and, at trial, she identified

Alexander as Doo-Doo and Leonard as Josh. According to Grimes’s

mother and girlfriend, Grimes and Alexander were good friends.

     On October 11, days after Grimes regained consciousness,

Detective Wayne Fairbairn visited him in the hospital. According to

Fairbairn, Grimes, who remained on the ventilator, “couldn’t talk”

and “could only mouth words,” 2 but he “could suck his cheek and

make a clicking noise.” When asked if he knew who shot him, Grimes

responded affirmatively. Fairbairn then devised a means by which

Grimes could spell out the name of the shooter; Fairbairn wrote the

alphabet on a piece of paper3 then pointed to each letter in turn, and

Grimes made “the clicking noise” to spell out the shooter’s name.




     2   This interview preceded the introduction of the valve to the
tracheotomy tube which allowed Grimes to speak.
      3 The piece of paper was introduced as an exhibit at trial.

                                  4
Through that process, Grimes spelled out the first and last names of

two shooters: Leonard and Alexander. Grimes was able to

communicate the shooters’ race and age, as well as the fact that they

were from Phenix City, Alabama. Fairbairn located mugshots of

Leonard and Alexander and created two six-photograph arrays. Two

days later, Fairbairn returned to the hospital to show the arrays to

Grimes. Grimes identified Leonard’s photograph in the first array

and Alexander’s photograph in the second array and indicated that

they were responsible for his injuries.

       Grimes died on June 26, 2011, as a result of “delayed

complications of gunshot wounds.” The morning of his death,

Grimes’s mother visited him in the hospital, and she testified at trial

that, during that last visit, Grimes told her that he was “right with

God” and that he wanted her “to forgive” him “if [he did] anything to

disrespect [her] or [she] had a hard time with [him].” Grimes

implored his mother “to forgive Josh and Doo-Doo,” indicating that

he would “never know why they did this but [she had] to forgive

them.” On the same day, at Grimes’s insistence, his mother

                                  5
summoned a family friend, Cathy Morgan, to the hospital; when

Morgan arrived, Grimes pleaded with her to take care of his mother.

Grimes died minutes after speaking with Morgan.

     Leonard and Alexander were apprehended in July 2011, and at

that time, Leonard had in his possession a plastic bag containing

approximately 13.8 grams of marijuana. The marijuana was divided

and individually wrapped in 17 different packs known as “dime

bags,” indicating it was intended for distribution. While detained

before trial in the Muscogee County jail, Leonard shared a

dormitory-style room with several other men. A bunkmate who

shared space with Leonard for nine months testified that he

overheard Leonard gloating to other inmates about the shooting.

The bunkmate testified that, when Leonard received the State’s

discovery packet, he hung a photograph of Grimes taken during the

autopsy on the wall and bragged about both killing Grimes and

preferring a .40-caliber pistol. Leonard also showed other autopsy

photographs to his fellow inmates and told them “this is what a

snitch look[s] like . . . this [is] what happened to him.”

                                   6
     2. Leonard first contends that the trial court erred by admitting

as dying declarations Grimes’s statements identifying Leonard as

the shooter. As explained below, we conclude that the trial court

properly admitted the statements Grimes made soon after regaining

consciousness and on the day he died. With respect to the

intervening statements, even assuming that the trial court erred by

admitting the statements as dying declarations, we conclude that

any such error was harmless.

     Before trial, Leonard moved to exclude Grimes’s statements,

and a hearing was held on Leonard’s motion. At that hearing, two of

Grimes’ treating physicians, Dr. Vincent Nicolais and Dr. Richard

Hannay, testified about Grimes’s injuries, his dependency on a

ventilator, and his status as a quadriplegic. Dr. Nicolais, who

treated Grimes in October and November 2010, noted that Grimes’s

prognosis was “dismal.” Dr. Hannay testified that Grimes “was

aware of what was going on” and that Grimes was “critically ill,”

which, he explained, meant that “death could occur at any time

without notice and be very sudden . . . even under the best of care[.]”

                                  7
In Dr. Hannay’s opinion, Grimes’s long-term prognosis was “very

poor,” he was at high risk for life-threatening infections, and his

“medium-term probability of death was at a hundred percent.”

     Following the hearing, the trial court denied Leonard’s motion,

concluding that Grimes was aware that he was within the “article of

death” when he made the challenged statements and that the fact

that Grimes “died about ten months from the day he was shot is

more a testament to modern science.” In reaching this conclusion,

the trial court credited the testimony of Grimes’s treating

physicians, including Dr. Hannay’s testimony that Grimes was

aware of his condition. The trial court also pointed to Grimes’s

statements to his mother about forgiving his assailants, noting that

such statements “are of the kind that shows awareness of the

nearness of one’s own death.”

     We review a trial court’s ruling admitting or excluding

evidence for an abuse of discretion. See Bolling v. State, 

 (2) (

) (2017). Code section 24-8-804 (b) (2) (“Rule

804 (b) (2)”), an exception to the rule excluding hearsay, provides

                                  8
that an out-of-court statement “made by a declarant while believing

that his or her death was imminent, concerning the cause or

circumstances of what the declarant believed to be impending death”

may be admitted in a homicide prosecution where the declarant is

unavailable to testify. Georgia Rule 804 (b) (2) is materially identical

to Federal Rule of Evidence 804 (b) (2). When we consider the

meaning of such a provision, “we look to decisions of the federal

appellate courts construing and applying the federal Rules,

especially the decisions of the United States Supreme Court and the

Eleventh Circuit for guidance.” (Citations and punctuation omitted.)

State v. Hamilton, 

 (3) (a) (

) (2020).

See also Bolling, 

 (2) (“[W]hen we consider [the]

meaning [of OCGA § 24-8-804], we may consider the decisions of

federal appellate courts . . . construing and applying our rule’s

federal counterpart.”). “Moreover, although Advisory Committee

Notes are not binding precedent and cannot change the plain

meaning of the law or rules, they are highly persuasive.” (Citation

and punctuation omitted.) Martinez-Arias v. State, 

, 286

                                   9
(3) n.8 (

) (2022).

     Under Federal Rule 804 (b) (2), “[a] dying declaration is

admissible as an exception to hearsay if the declarant makes the

statement while conscious of impending death and under the belief

that there is no chance of recovery.” (Citation and punctuation

omitted.) United States v. Peppers, 

 (III) (C) (2) (3d

Cir. 2002). See also United States v. Lawrence, 

 (II)

(B) (1) (3d Cir. 2003) (for statement to be admissible as dying

declaration,   “the   declarant   must   have    spoken    with    the

consciousness of a swift and certain doom” (citation and punctuation

omitted)). As the United States Supreme Court has explained,

     [t]here must be a “settled hopeless expectation” that
     death is near at hand, and what is said must have been
     spoken in the hush of its impending presence. Despair of
     recovery may indeed be gathered from the circumstances
     if the facts support the inference. There is no unyielding
     ritual of words to be spoken by the dying. Despair may
     even be gathered though the period of survival outruns
     the bounds of expectation. What is decisive is the state of
     mind. Even so, the state of mind must be exhibited in the
     evidence, and not left to conjecture.

(Citations and punctuation omitted.) Shepard v. United States, 290


                                  

, 100 (1) (1933).4 See also Peppers, 

 (III) (C)

(2) (“A court may infer knowledge of the seriousness of a declarant’s

condition from the nature and extent of the wounds inflicted.”

(citation and punctuation omitted)). And while a general fear for

one’s life is insufficient to demonstrate an impending sense of death,

it is well established that a declarant need not die shortly after

making a statement in order for that statement to be admissible as

a dying declaration. See Mattox v. United States, 

(1892) (“[I]t is the impression of almost immediate dissolution, and



      4  Federal Rule 804 (b) (2) codifies and broadens the common law’s long-
standing hearsay exception for dying declarations, but while the Rule is
“considerably more liberal than the common-law exception,” its applicability
“still depends,” as it did at common law, “on the declarant’s belief that death
was imminent at the time of the statement.” United States v. Williams, 837
F2d 1009, 1012 (II) (A) n.5 (11th Cir. 1988). See also Advisory Committee Note
on Federal Rule 804 (b) (2) (explaining that “[t]he exception is the familiar
dying declaration of the common law, expanded somewhat beyond its
traditionally narrow limits”); McCormick on Evidence, § 310 (“Evidence that
would satisfy the common law would clearly satisfy [Federal Rule 804 (b) (2)],
and a growing number of courts have recognized that a lesser showing will
suffice.”). Thus, in assessing whether a declarant’s statement was made while
the declarant believed death to be imminent, federal courts frequently look to
decisions that pre-date the 1975 codification of Federal Rule 804 (b) (2) and
apply the common-law exception. See, e.g., Lawrence, 

 (II) B) (1)
(relying on Shepard, 290 U. S. at 100-103, decided in 1933).



                                      11
not the rapid succession of death, in point of fact, that renders the

testimony admissible.” (citation and punctuation omitted)).

     Turning first to the statements Grimes made to his mother, his

girlfriend,   and   Detective     Fairbairn    shortly    after   regaining

consciousness, Leonard asserts that the statements were improperly

admitted because, he says, Grimes’s death was not imminent at the

time he made the statements and, even if it were, Grimes was not

aware of it.5 As an initial matter, Leonard misapprehends the

pertinent inquiry. Indeed, as the plain language of Rule 804 (b) (2)

makes clear, the issue is not whether the declarant’s death was in

fact imminent at the time of the declaration but whether the

declarant believed it to be so. And here, the State presented

significant evidence to support the inference that Grimes believed

his death to be imminent, including testimony that Grimes

remained in the intensive care unit when he made the statements,




     5 Leonard does not dispute that Grimes was unavailable for trial or that
the statements at issue concerned the cause or circumstances of Grimes’s
death.
                                     12
that the severity of his injuries resulted in Grimes’s complete

paralysis beyond his ability to slightly move his head and facial

features, that he was entirely dependent on a ventilator, that he was

at a high risk of death due to his injuries, and that he was aware of

his   grievous   condition.   Indeed,   the   physicians’   testimony

underscored the severity of Grimes’s condition, with Dr. Hannay

testifying that Grimes’s chance of death from complications of his

injuries was one-hundred percent in the “medium term,” that “death

could occur at any time without notice and be very sudden,” and that

Grimes was aware of his condition. Based on this evidence, “[i]t is

reasonable to infer that [Grimes] knew about the seriousness of his

condition” and was contemplating his impending death when he

initially identified Leonard and Alexander as the shooters. Webb v.

Lane, 922 F2d 390, 396 (II) (A) (2) (7th Cir. 1991) (facts supporting

inference that declarant, who had suffered multiple gunshot

wounds, believed death was imminent included his attachment to a

life-support machine and officer’s informing declarant that doctors

believed his chances for survival were “not especially good”). See also

                                  13
Mobley v. United States, 421 F2d 345, 347-348 (5th Cir. 1970)

(declarant’s sense of impending death was properly inferred from

the “gravity and extent” of his wounds, as evidenced by treating

physician’s testimony, despite fact that declarant was not told that

death was imminent). Compare United States v. Two Shields, 

 (8th Cir. 2007) (despite severity of injuries and

declarant’s quick death, statements not admissible as dying

declarations because no doctor had diagnosed injuries as life-

threatening and declarant never indicated a belief of impending

death). We thus cannot say that the trial court abused its discretion

by admitting these statements as dying declarations.

     Turning next to the statements Grimes made to his mother on

the day of his death imploring her to forgive Leonard and Alexander,

Leonard maintains that these statements were improperly admitted

because Grimes’s death was not imminent and because Grimes did

not believe it to be so. In support of this contention, Leonard points

to the fact that, shortly before his death, Grimes had been

readmitted to the hospital for a “routine procedure.” But, as we

                                 14
noted above, whether Grimes’s death was actually imminent is

beside the point; the question is whether Grimes believed it to be so.

In answering that question affirmatively, the trial court looked to

the content of Grimes’s statements—namely, the expressions of

forgiveness toward his assailants and his exhortations to his mother

encouraging her likewise to forgive his assailants—to find that, at

the time of the statements, Grimes maintained “a settled hopeless

expectation that death [was] near at hand.” Shepard, 290 U. S. at

100 (1) (a declarant speaks with consciousness of impending death

where she “announc[es] to the survivors a definitive conviction, a

legacy of knowledge on which the world might act when she had

gone”). In addition to the statements’ content, the context of

Grimes’s statements, which were made while he was hospitalized

and nearly contemporaneously with his insistence that Cathy

Morgan be urgently summoned so that he could implore her to take

care of his mother, supports a finding that Grimes was

contemplating his imminent death. We therefore cannot say that the

trial court here abused its discretion by admitting Grimes’s

                                 15
statements made on the day of his death.

     The trial court also admitted as dying declarations several

statements Grimes made to various friends and family members in

the months after he was discharged from the hospital. Leonard

challenges the admission of these statements as well. Pretermitting

whether the trial court erred by admitting these statements, the

substance of the statements—that Leonard and Alexander were

responsible for Grimes’s shooting—is essentially cumulative of other

evidence, including nearly identical statements that Grimes made

to his mother and others and the testimony of Leonard’s bunkmate

that Leonard bragged to his fellow inmates about shooting and

killing Grimes. See Davis v. State, 

 (4) (

) (2017) (even if statement fell outside hearsay exception,

it was merely cumulative of other evidence, and its admission was

therefore harmless); Anglin v. State, 

 (2) (

) (2017) (“[T]he erroneous admission of hearsay is harmless

where substantial, cumulative, legally admissible evidence of the

same fact is introduced.”). In light of the evidence discussed above,

                                 16
we conclude that it is highly probable that the admission of these

functionally identical statements did not contribute to the verdict.

See Glispie v. State, 

 (1) (2016) (“The test for

determining nonconstitutional harmless error is whether it is highly

probable that the error did not contribute to the verdict.” (citation

and punctuation omitted)).

     3. Next, Leonard asserts that Grimes’s statements to Detective

Fairbairn were testimonial and that their admission was in violation

of Leonard’s right to confrontation under the Sixth Amendment to

the United States Constitution. See Crawford v. Washington, 

 (

, 158 LE2d 177) (2004). With respect to this

claim, the record reflects that, following a hearing on Leonard’s

motion   to   exclude   Grimes’s    statements,   Leonard   filed   a

supplemental brief concerning “dying declarations and necessity

exceptions to testimonial hearsay in light of Crawford v.

Washington.” In that brief, Leonard expressly stated that “[a] dying

declaration is an exception to he[ar]say as well as the rule of

Crawford.” The trial court subsequently ruled that Grimes’s

                                   17
statements were admissible as dying declarations. Leonard did not

object to the statements on the particular grounds that he now

asserts—that the admission of Grimes’s statements as dying

declarations ran afoul of Crawford—and the trial court made no

ruling on that claim. Thus, we review this claim only for plain error.

See Goins v. State, 

 (4) (

) (2020); OCGA

§ 24-1-103 (d). To demonstrate plain error, Leonard

     must point to an error that was not affirmatively waived,
     the error must have been clear and not open to reasonable
     dispute, the error must have affected his substantial
     rights, and the error must have seriously affected the
     fairness, integrity or public reputation of judicial
     proceedings.

(Citation and punctuation omitted.) Carter v. State, 

(3) (b) (

) (2022). “The failure to meet one element of

this test dooms a plain error claim, and so it is here.” (Citation

omitted.) Denson v. State, 

 (2) (

)

(2019).

     In Crawford, the United States Supreme Court held that “the

admission of out-of-court statements that are testimonial in nature


                                 18
violates the Confrontation Clause unless the declarant is

unavailable and the defendant had a prior opportunity for cross-

examination.” (Citation and punctuation omitted.) State v. Gilmore,

 (

) (2021). See also Crawford, 

 (V) (B). The Crawford Court also suggested, but did not decide,

that dying declarations, even if testimonial, may present an

exception to the Confrontation Clause. 

 (III) (B) n.6

(“Although many dying declarations may not be testimonial, there

is authority for admitting even those that clearly are. We need not

decide in this case whether the Sixth Amendment incorporates an

exception for testimonial dying declarations.” (citations omitted)).

And as Leonard acknowledges, neither the United States Supreme

Court nor the United States Court of Appeals for the Eleventh

Circuit has yet made a definitive ruling on the issue. 6 Nevertheless,



     6  Some of our own case law seems to suggest in dicta that this question
has been resolved in Georgia. See Durham v. State, 

 (2) n.4
(

) (2015); Walton v. State, 

 (1) (

)
(2004). But those cases suggest that Crawford definitively held that dying
declarations do not implicate the Confrontation Clause. As we note above,
however, Crawford expressly left that question open. We thus disapprove

                                     19
Leonard asserts that, assuming such an exception is recognized by

this Court, 7 the exception is limited to statements satisfying “the

common law exception [for dying declarations] contemporaneous to

the Sixth Amendment’s ratification,” and, he says, Grimes’s

statements do not meet that standard. But Leonard points to no

controlling authority, and we have found none, to support this claim.

Leonard thus has failed to show clear and obvious error, as “the

absence of clear authority to support the proposition that [Leonard]

advances prevents the establishment of plain error[.]” Simmons v.

State, 

 (2) (

) (2016). See also Wilson v.

State, 

 (

) (2012) (“An error is plain if

it is clear or obvious under current law. An error cannot be plain

where there is no controlling authority on point and where the most




Durham and Walton to the extent they suggest that the Confrontation Clause
question related to dying declarations that was reserved in Crawford is
anything but an open question of federal constitutional law. And we are
unaware of any of our own precedent that independently analyzes that
question either.
      7 Leonard advances no argument as to whether this Court should or

should not recognize such an exception.
                                   20
closely analogous precedent leads to conflicting results.” (citation

and punctuation omitted)). Accordingly, this claim fails.

     4. Leonard next challenges the trial court’s denial of his motion

to sever Count 7 (possession of marijuana with intent to distribute)

from the remaining charges. It does not appear from the record,

however, that Leonard obtained a ruling on his motion to sever.

Leonard filed in the trial court a “motion in limine to exclude any

reference to the circumstances of [Leonard’s] arrest or the charge of

possession of marijuana with intent or motion for severance of

indictment.” Leonard’s motion focused on the admissibility of

evidence surrounding the circumstances of his arrest and only

obliquely referenced severance, stating in passing that “the State

would have recourse to pursue the drug charge in a later trial in the

same manner as when a case is bifurcated in order to prevent

prejudice when a defendant is a convicted felon.” And the trial

court’s oral ruling, which was not reduced to writing, addresses only

the admissibility of evidence of the circumstances of Leonard’s



                                 21
arrest, not severance. 8 Because Leonard “failed to obtain a ruling on

the issue, [he] cannot raise it for the first time in this Court.”

Johnson v. State, 

 (III) (

) (2017). See

also Guffie v. State, 

 (3) (

) (2018)

(argument waived for purposes of appeal where appellant

challenged denial of motion to sever but “never presented [the]

argument to the trial court either in his motion to sever or during

the hearing on same”). We therefore conclude that Leonard has

waived this argument for purposes of appeal.9

      5. During closing argument, Leonard sought to cast doubt on

the veracity of Grimes’s family members and friends who testified

about Grimes’s statements identifying Leonard and Alexander as

the shooters, insinuating that Grimes did not make the statements

about which they testified. In response, the prosecutor argued:



      8 Nor did the trial court address the issue in denying Leonard’s motion
for new trial.
      9 We note that this claim may not be reviewed for plain error. See Brooks

v. State, 

 (3) (

) (2020) (identifying claims that
are subject to plain error review and noting that “[t]his Court has declined to
extend plain error analysis to other claims of error in the absence of a specific
provision by the General Assembly”).
                                       22
     Who [Grimes] said did it is who they went after. And who
     [Grimes] said did it is the same person they said over, and
     over, and over. And who would [Grimes] have said this to?
     To his family members, to those who come, to those who
     are there next to him. Why would [Grimes] say this to
     everybody who c[a]me his way? You know why he would
     say it. I thought about it for a while. I was taken to the
     55th number of Psalms, verses 12, King David is saying:
     Now it is any enemy who insulted me—

Leonard’s counsel objected to the prosecutor’s use of scripture, which

the trial court overruled. The prosecutor continued:

     This is what happened again, Psalm 55 verse 12 said:
     Now, it is not an enemy who insulted me. Otherwise I
     could bear it. It is not a foe who rise up against me.
     Otherwise I could hide from him. But it is you, who is my
     peer, my companion and good friend, we used to
     fellowship, close fellowship. We would walk with the
     crowd into the house of God.

     That’s why he’s telling everybody. He can’t believe that it
     was his friend. He can’t believe that it was Doo-Doo who
     would do something like this. That’s why everybody he
     finds he turns and he says: Josh, Doo-Doo. He can’t
     believe it. If it had been an enemy, he could have
     protected his self, but it was you. You, the one who slept
     at my house, who ate at my table.

On appeal, Leonard contends that this ruling was erroneous and

that a curative instruction was warranted. We disagree.

     Counsel is afforded wide latitude during closing argument, the

                                 23
scope of which is a matter for the trial court’s discretion. Arnold v.

State, 

 (2) (a) (

) (2020). We judge

closing arguments “in the context in which they are made.” Blaine

v. State, 

 (2) (

) (2019). A prosecutor may

“discuss and draw inferences from factual matters in evidence . . .

[and] respond to points made in—and issues omitted from—the

defendant’s closing argument.” 

 Likewise, a prosecutor “is allowed

to make illustrations that may be as various as are the resources of

his genius,” (Citation and punctuation omitted.) Arnold, 

 (2) (a), and “may allude to such principles of divine law relating

to transactions of men as may be appropriate to the case,” (Citations

and punctuation omitted.) Greene v. State, 

 (26) (

) (1996), reversed on other grounds by Greene v. Georgia,

 (

, 136 LE2d 507) (1996).

     Reading closing arguments as a whole, we cannot say that the

trial court abused its discretion when allowing the prosecutor’s

reference to scripture, which was permissible rebuttal. Indeed, the

prosecutor attempted to defuse Leonard’s argument and offer an

                                 24
explanation as to why Grimes repeatedly identified Leonard and

Alexander, resorting to Biblical references for a more expressive

description of the idea of betrayal. And this theme was supported by

the evidence; Grimes’s mother and others testified that Alexander

was one of Grimes’s best friends and that Grimes was shocked that

Alexander would hurt him. See Greene, 

 (26); Lewis v.

State, 

 (5) (2010) (

) (2010) (“Counsel

may make use of well-established historical facts in his argument

and make full use of illustrations as long as he does not introduce

extrinsic and prejudicial matters which have no basis in the

evidence.” (punctuation omitted)). Under these circumstances, we

cannot say that the trial court abused its broad discretion by

overruling Leonard’s objection and not giving a curative instruction.

See Blaine, 

 (2).

     6. Leonard next challenges the trial court’s denial of his motion

to dismiss the indictment for want of a speedy trial. This claim is

unavailing.

     “When an accused claims that a delay in bringing him to trial

                                  25
has worked a denial of his constitutional right to a speedy trial, a

court first must consider whether the delay is long enough to raise

a presumption of prejudice and to warrant a more searching judicial

inquiry into the delay.” State v. Johnson, 

 (1) (

) (2012). Here, Leonard was arrested in July 2011. In

February 2013, Leonard, who had yet to be indicted, filed a

constitutional and statutory demand for a speedy trial, and in March

2013, he moved to dismiss the case against him for want of a speedy

trial. The trial court denied his motion in February 2014, only weeks

after the grand jury returned an indictment against Leonard. In

light of the 30-month delay between Leonard’s arrest and the denial

of his speedy trial motion,10 the presumptive prejudice “threshold

was crossed,” and the inquiry “proceeds to the second part of the




      10The State properly conceded the issue of presumptive prejudice below.
See Redding v. State, 

 (2) (

) (2022) (“A delay of
one year or more is typically presumed to be prejudicial.”); State v. Porter, 

 (2) (b) (

) (2011) (“Where a trial has not occurred, the
delay should be calculated from the date of arrest or other formal accusation
to the date on which a defendant’s speedy trial motion was granted or
denied[.]”).

                                       26
[Barker 11] framework, applying a context-focused, four-factor

balancing test to determine whether the defendant was denied the

right to a speedy trial.” Redding v. State, 

 (2) (

) (2022). Specifically, a court must consider and balance

“(1) the length of the delay; (2) the reasons for it; (3) the defendant’s

assertion of his right to a speedy trial; and (4) prejudice to the

defendant.” 

     This analysis requires courts to “engage in a difficult and

sensitive balancing process,” while bearing in mind that “[t]hese

four factors have no talismanic qualities” and “must be considered

together with such other circumstances as may be relevant.”

(Citation and punctuation omitted.) State v. Pickett, 

 (2)

(a) (

) (2011). “[T]he application of these principles to

the circumstances of a particular case is a task committed

principally to the discretion of the trial courts, and it is settled law

that our role as a court of review is a limited one.” State v. Buckner,


     11 Barker v. Wingo, 

 (

, 33 LE2d 101) (1972). See
also Doggett v. United States, 

 (

, 120 LE2d 520)
(1992).
                                     27


 (

) (2013).

      (a) Length of the delay

      “As the trial court found and the State concedes, th[e] delay”—

here, 30 months—“was ‘presumptively prejudicial,’ and the trial

court was correct to weigh the length of the delay against the State.”

Henderson v. State, 

 (2) (a) (

) (2020).12

      (b) Reasons for the delay

      The trial court attributed responsibility for the delay to the

State but found “no evidence that the delay was the result of any

intentional or deliberate action by the State to hamper the defense.”

Three reasons were proffered for the delay: that the State first

sought to proceed with the prosecution of Alexander for an unrelated

murder charge; that Grimes’s girlfriend had been indicted for an

additional unrelated murder and the State sought to determine her

availability as a witness; and that the State sought additional DNA

testing on evidence recovered from the crime scene. Finding that the


      12Contrary to Leonard’s assertion, the trial court, in fact, did find that
the delay in this case was uncommonly long, and its order reflects that it
properly weighed this factor against the State.
                                      28
State was entitled to collect additional evidence and that the delay

was “the result of the circumstances surrounding [Alexander],

[Grimes’s girlfriend] and testimonial evidence,” the trial court

concluded that this factor was “relatively benign” and “weighed only

lightly against the State.” On appeal, Leonard asserts that the trial

court “misapplied the law” in assigning only “relatively benign”

weight to this factor because, he says, the State delayed the trial for

the purpose of gaining a “tactical advantage,” such that this factor

should have been weighed heavily against the State. We agree that

this factor deserved more than the “relatively benign” weight

assigned by the trial court, though not to the extent Leonard urges.

      “In assessing the reasons for the delay, the trial court must

consider which party was responsible for the delay, whether the

delay was intentional, and, if it was intentional, what the motive

was for seeking or causing the delay.” Davis v. State, 

 (2) (d) (ii) (

) (2022). As to the amount of weight

assigned to this factor, “different weights should be assigned to

different reasons.” (Citation and punctuation omitted.) Johnson, 291

                                  29
Ga. at 865 (2) (b). “A deliberate attempt to delay the trial in order to

hamper the defense should be weighted heavily against the

government,” and “an unintentional delay, such as that caused by

the prosecuting attorney’s mere negligence or the trial court’s

overcrowded docket, should be weighted less heavily.” (Citation and

punctuation omitted.) State v. Alexander, 

 (2) (b)

(

) (2014).

     As to the first and second reasons for the delay—that Grimes’s

girlfriend and Alexander each had been indicted on unrelated

charges—Leonard contends that the State chose to proceed first

with the prosecutions against Grimes’s girlfriend and Alexander in

the hope of securing their testimony against Leonard and thereby

gaining a tactical advantage, which, he argues, should weigh heavily

against the government. The facts of this case are analogous to

Jackson v. State, 

 (

) (2000). In

Jackson, the prosecution delayed the appellant’s trial in order to try

the appellant and his co-defendants together, and in opposing the

appellant’s speedy trial claim, the State argued that “because th[e]

                                  30
delay was not intentional, it is of no consequence.” 

 We rejected

that argument, reasoning that “[w]hile there is no evidence that this

was a deliberate attempt to ‘hamper the defense,’ neither is it

negligence which is ‘relatively benign.’ [The reason for the delay] is

therefore weighted against the [S]tate.” (Footnote omitted.) 

 That

rationale applies here. Though there is no evidence that the delay

was designed to hamper Leonard’s case, the delay cannot be chalked

up to negligence and must be afforded more than “relatively benign”

weight. See 

 See also Johnson, 

 (2) (b) (“The

unavailability of State witnesses weighs against the State.” (citation

and punctuation omitted)).

     Turning to the third reason—that the State sought to analyze

DNA evidence recovered at the crime scene—Leonard complains

about the State’s failure to do so in a timely manner, noting that the

State did not obtain a DNA sample from him until November 2013,

more than two years after his arrest. Leonard does not, however,

contend that the State’s delay in collecting a DNA sample resulted

from anything other than “negligent inaction,” which is properly

                                 31
weighed “benignly” against the State. See Buckner, 

(3) (b).

      (c) Assertion of the right

      The trial court weighed the third factor heavily against

Leonard, finding that Leonard waited more than nineteen months

before asserting his right to a speedy trial despite being represented

by counsel within one month of his arrest. The record supports that

finding, and the trial court did not abuse its discretion by weighing

this delay heavily against Leonard. 13 See Brown v. State, 

 (2) (c) (

) (2010) (appellant’s two-year delay in

asserting right to speedy trial was properly weighed heavily against

him); Buckner, 

 (2) (c) (“Once the right to a speedy

trial attaches, the accused must assert it with reasonable

promptness, and delay in doing so normally will be weighed against



      13To the extent Leonard argues that his failure to invoke his speedy trial
right sooner was attributable to the State’s failure to indict him, such a
contention is without merit. See Ruffin v. State, 

 (2) (b) (iii) (

) (2008) (“[I]nvocation of the speedy trial right need not await
indictment, information, or other formal charge; the accused can begin
demanding that the right to a speedy trial be honored as soon as he or she is
arrested.” (citation and punctuation omitted)).
                                        32
him.” (punctuation omitted)).

      (d) Prejudice

      The trial court did not abuse its discretion by determining that

Leonard failed to establish that he was prejudiced by the delay in

bringing his case to trial. “The prejudice associated with

unreasonable delay before trial includes oppressive pretrial

incarceration, anxiety and concern of the accused, and the

possibility that the (accused’s) defense will be impaired by dimming

memories and loss of exculpatory evidence.” Henderson, 

 (2) (d). “Of these forms of prejudice, the most serious is the

last[.]” 

      With respect to the prejudice factor, the trial court found that

“no evidence [had been] presented to show actual prejudice or

impairment of [Leonard’s] defense.” Leonard now argues that

recordings of a 911 call and a tipster call were destroyed by the time

of trial and that his defense was thereby prejudiced. In support of

this contention, Leonard points to trial counsel’s testimony that this

evidence could have been helpful in identifying witnesses to the

                                  33
shooting. But this testimony was presented at the hearing on

Leonard’s motion to supplement the appellate record, and it does not

appear from the record—nor does Leonard argue—that he raised

this claim in the trial court. Indeed, the record supports the trial

court’s finding that Leonard failed to present any evidence that his

defense was impaired; thus, the trial court properly weighed this

factor against Leonard. 14 See Ruffin v. State, 

 (2) (b)

(iv) (

) (2008).

      (e) Balancing the four factors

      In light of the trial court’s error with respect to the weight

afforded to the second factor, our deference to the trial court’s denial

of Leonard’s motion is somewhat diminished. Nevertheless, we

conclude that “had the trial court used the correct facts and legal

analysis, it would have had no discretion to reach a different




      14 Contrary to Leonard’s assertion, the trial court’s conclusion as to
prejudice was not based solely on its finding that Leonard was incarcerated for
a probation violation. See Redding v. State, 

 (2) (

)
(2022) (trial court erred by “ruling that [a]ppellant’s probation hold precluded
the need to assess prejudice associated with oppressive pretrial
incarceration”).
                                      34
judgment.” Pickett, 

 (2) (d). To be sure, “[g]iven

[Leonard’s] failure to present any persuasive evidence of ‘prejudice’

as that term is used in the Barker-Doggett analysis,” as well as “the

fact that [Leonard] asserted the speedy trial right relatively late in

the process,” we cannot say that the trial court abused its discretion

by denying Leonard’s motion to dismiss. Ruffin, 

 (3).

     7. Finally, Leonard summarily asserts that the cumulative

effect of the trial court’s errors was harmful and entitles him to a

new trial. But as set forth above, we have identified no error that

would require cumulative consideration. See Pritchett v. State, 

 (4) (

) (2022) (To establish cumulative

error, an appellant “must show that at last two errors were

committed in the course of the trial, and when considered together

along with the entire record, the multiple errors so infected the

jury’s deliberation that they denied him a fundamentally fair trial.”

(citation and punctuation omitted)). Indeed, we did not identify any

error and have pretermitted error only with respect to the admission

of Grimes’s statements identifying the shooters that were made

                                 35
between his initial conscious moments in the hospital and the day of

his death. And we held the admission of that evidence to be

harmless. In the absence of any other error or pretermitted error,

there is nothing for us to consider with respect to this enumeration.

     Judgment affirmed. All the Justices concur.




                                 36