Reed v. State

878 S.E.2d 217, 314 Ga. 534

• Court: Supreme Court of Georgia
• Decided: September 7, 2022
• Docket: S22A0530
• Status: Published

Opinion

314 Ga. 534 FINAL COPY

S22A0530. REED v. THE STATE.

MCMILLIAN, Justice.

Jaquavious Reed appeals his conviction for murder and other

charges in connection with the death of Antwan Curry.1 On appeal,

1 Curry was killed on March 15, 2010. On June 15, 2010, a Fulton County

grand jury indicted Reed and Santron Prickett in connection with Curry’s death, charging them jointly with murder (Count 1); felony murder predicated on aggravated assault (Count 2); aggravated assault (Count 4); and possession of a firearm during the commission of a felony (Count 5). Prickett was also charged with felony murder predicated on possession of a firearm by a convicted felon (Count 3) and possession of a firearm by a convicted felon (Count 6). Reed and Prickett were tried together before a jury from May 2 to May 10, 2011. Reed was convicted of all counts charged against him and sentenced to life in prison on both Counts 1 and 2. Reed also was sentenced to five years on Count 5, to run consecutive to Count 2, and Reed’s conviction for aggravated assault under Count 4 was merged for sentencing purposes into Counts 1 and 2. Prickett was convicted of all charges except murder, and he filed a separate appeal of those convictions in Case No. S22A0531. See Prickett v. State, 314 Ga. 435 (__ SE2d __). Reed’s trial counsel filed a timely motion for new trial on May 13, 2011, and appointed appellate counsel filed an amended motion for new trial on May 16, 2019. Reed’s current appellate counsel entered an appearance on February 2, 2021, and filed a second amended motion for new trial on April 6, 2021. The trial court held a joint hearing on Reed’s and Prickett’s separate motions for new trial from July 21 to 23, 2021, and entered orders denying their motions on October 21, 2021. Reed filed a timely notice of appeal, and the case was docketed to the April 2022 term of this Court and was orally argued on April 21, 2022. Reed asserts that (1) the evidence was insufficient to support his

convictions; (2) he was denied due process due to an inordinate delay

in the appellate process; (3) he was denied the right to be present at

every critical stage of the trial when the trial court conferred with

counsel at 26 bench conferences; (4) the Fulton County District

Attorney’s Office (the “DA’s office”) should have been disqualified

because his attorney of record was employed by the DA’s office at

the time of trial; (5) he was denied due process when the State failed

to preserve a true and correct copy of the full trial transcript

including the bench conferences; (6) he was denied the right to

effectively confront his accusers when the State failed to turn over

exculpatory Crime Stoppers reports in violation of Brady v.

Maryland, 373 U.S. 83, 87 (83 SCt 1194, 10 LE2d 215) (1963); (7)

the trial court committed reversible error by refusing his request for

a continuance to allow time to investigate a “surprise witness”

presented by the State; (8) he received ineffective assistance of

counsel with regard to the bench conferences, the incomplete

transcript, and his trial counsel’s failure to object to the

2 “presumption of truthfulness” jury charge; and (9) the trial court

erred in sentencing him for both murder and felony murder.

Although we agree with Reed that the trial court erred in imposing

his sentence and we vacate his conviction for felony murder and

remand for resentencing, we otherwise affirm for the reasons

discussed below.

The evidence presented at trial showed that on March 15, 2010,

Curry stopped at an apartment complex in Fulton County and

purchased marijuana. Curry subsequently became involved in a

physical altercation with Santron Prickett in a parking lot at the

complex. Five people who knew Prickett testified at trial that they

observed this altercation. One witness testified that he heard

Prickett and Curry arguing about the fact that Curry bought the

marijuana from someone other than Prickett. Witnesses said the

two men “tussled” and Curry appeared to be getting the better of

Prickett until Curry was shot in the knee. After he was shot, Curry

continued to struggle with Prickett, until Prickett was shot in the

3 hand and ran away.2 One witness told police that Prickett later told

her that, as he ran away, he yelled, “[T]hat n****r shot me. . . . [Y]’all

kill that p***y n****r.”3

Three witnesses, who knew Reed, testified that after Prickett

left, Reed approached Curry and shot him. Keon Burns testified that

Reed took the gun from Prickett and “finished it off” by shooting

Curry. Willie Wilson testified that after Prickett ran off, Curry was

on his knees in the parking lot when Reed shot Curry at least twice,

saying let the “f*****g n****r die.” Reed directed that no one should

help Curry and then put the gun in the back of his pants and left.

Harriet Feggins testified that she was sitting in her car at the

complex when she saw Prickett struggling with Curry. After

Prickett left, it looked like Curry was trying to get up. She saw Reed

approach Curry and “just unload” the gun. She did not know how

2 The evidence surrounding Prickett’s involvement in the crimes charged

is more fully set out in our opinion in Prickett, 314 Ga. 435 (___ SE2d ___) (2022). 3 Later, this witness, the mother of one of Prickett’s children, recanted

her statement to police. She testified at trial that everything she told police Prickett had said to her was a lie because she was mad at Prickett at the time. 4 many times Reed shot Curry, but she heard Reed shout, “P***y

n*****r, you can’t do nothing,” and that he was going to show Curry

“how it’s done.” A fourth witness, Lakeyta Smith, also testified that

she saw someone shoot Curry after Prickett fled the scene, but she

did not know Reed and she could not pick his photo out of a police

lineup. The medical examiner testified that in addition to the

gunshot wound to Curry’s knee, Curry had gunshot wounds to the

chest and shoulder. She said that Curry died from a bullet that

entered his shoulder and traveled through his body striking his

lung, heart, and liver.

When Reed was arrested about one month after the incident,

he told police that he was not there when Curry was shot but instead

was at his cousin’s apartment in another part of the complex.

However, Reed’s cousin testified at trial that when she left her

apartment about an hour or so before the shooting, Reed was not

inside but instead was sitting outside in the complex about a couple

of minutes’ walk from the scene of the shooting.

The State also called Feggins’s cousin as a witness in response

5 to Feggins’s testimony, which, although it implicated Reed, was

exculpatory for Prickett. The cousin described an earlier altercation

she had with Feggins during which Feggins bit the cousin in the leg,

kicked in the cousin’s door, and threatened the cousin with a pistol.

When asked about Feggins’s reputation for truthfulness in the

community, Feggins’s cousin replied that it depended on the

situation.

Reed called five witnesses at trial in his defense. Reed’s

grandmother testified that he had never been in trouble before.

Wilson’s daughter, whom Reed dated for almost a year, testified that

her father was a “compulsive liar,” who did not like Reed. Two of the

remaining witnesses were called to rebut Wilson’s testimony as to

the sequence of events on the day of the crime, and the third, a law

student assisting the defense, said that when Reed’s trial counsel

previously interviewed Feggins’s cousin about Feggins’s reputation

for truthfulness in the community, the cousin replied that Feggins

was “a liar.”

1. Reed first argues that the evidence was insufficient to

6 support his convictions.4 When evaluating the sufficiency of evidence

as a matter of constitutional due process, “the relevant question is

whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson

v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560)

(1979) (emphasis omitted). “This Court does not reweigh evidence or

resolve conflicts in testimony; instead, evidence is reviewed in a light

most favorable to the verdict, with deference to the jury’s

assessment of the weight and credibility of the evidence.” Hayes v.

State, 292 Ga. 506, 506 (739 SE2d 313) (2013) (citations and

punctuation omitted).

Reed argues that the evidence against him was insufficient

4 Reed enumerated as error that “[t]he verdict of the jury is contrary to

the evidence and the principles of justice and equity, OCGA § 5-5-20; the verdict is decidedly and strongly against the weight of the evidence, OCGA § 5-5-21; and a new trial should be granted for other grounds not otherwise provided for in statute, according to the provisions of the common law and practice of the courts, OCGA § 5-5-25.” “However, our review of a trial court's denial on the general grounds is limited to review of the sufficiency of the evidence under Jackson.” Poole v. State, 312 Ga. 515, 520 n.3 (863 SE2d 93) (2021). 7 because it rested only on the testimony of Wilson and Feggins,

neither of whom made an initial statement to police once

investigators arrived on the scene. Moreover, the evidence showed

that Wilson was upset that Reed was dating his daughter and the

State sought to impeach Feggins’s testimony at trial, even though

Feggins was a witness for the State.5

However, Reed’s arguments merely attack the credibility of

Wilson and Feggins, and it is well settled that “it is the role of the

jury to resolve conflicts in the evidence and to determine the

credibility of witnesses, and the resolution of such conflicts

adversely to the defendant does not render the evidence

insufficient.” Graham v. State, 301 Ga. 675, 677 (1) (804 SE2d 113)

(2017) (citation and punctuation omitted). Moreover, Reed’s

arguments fail to take into account the remainder of the evidence

presented by the State at trial, including, but not limited to, Burns’s

testimony that he saw Reed take the gun from Prickett and shoot

Curry. See OCGA § 24-14-8 (“The testimony of a single witness is

5 The State also argued in closing that Feggins could not be believed.

8 generally sufficient to establish a fact.”).

We conclude that the evidence presented at trial, when viewed

in the light most favorable to the verdict, was sufficient to authorize

a rational trier of fact to find beyond a reasonable doubt that Reed

was guilty of the crimes for which he was convicted.

2. Reed also contends that he was denied due process because

there was an inordinate delay in the appellate process, thereby

violating his right to a speedy appeal.

“This Court has recognized that substantial delays experienced

during the criminal appellate process implicate due process rights.”

Chatman v. Mancill, 280 Ga. 253, 256 (2) (a) (626 SE2d 102) (2006).

In assessing such claims, this Court considers four factors: “(1) the

length of the delay; (2) the reason for the delay; (3) the defendant’s

assertion of his right; and (4) prejudice to the defendant.” Terrell v.

State, 313 Ga. 120, 123 (1) (868 SE2d 764) (2022). Prejudice in this

context “is prejudice to the ability of the defendant to assert his

arguments on appeal and, should it be established that the appeal

was prejudiced, whether the delay prejudiced the defendant’s

9 defenses in the event of retrial or resentencing.” Chatman, 280 Ga.

at 260 (2) (e) (appropriate test for analyzing prejudice in this context

is “akin to the second prong of Strickland v. Washington, 466 U. S.

668 (104 SCt 2052, 80 LE2d 674) (1984): appellate delay is

prejudicial when there is a reasonable probability that, but for the

delay, the result of the appeal would have been different” (citation

and punctuation omitted)). Reed bears the burden of showing the

requisite prejudice, and we have “repeatedly [determined] that the

failure to make this showing of prejudice in an appellate delay claim

is fatal to the claim, even when the other three factors weigh in the

appellant’s favor.” Terrell, 313 Ga. at 123 (1) (citation and

More than ten years passed between Reed’s conviction and

sentence in May 2011 and the order denying his motion for new trial

in October 2021. Reed asserts that he was prejudiced because, due

to this delay, his trial attorney could not remember what occurred

before or during trial and none of the trial participants could recall

what occurred during the unrecorded bench conferences that took

10 place during the trial, which Reed claims hampered his ability to

present his appeal. However, Reed elicited no testimony from his

trial counsel or the other trial participants that their memories

regarding the bench conferences would have been better if the

appeal had occurred earlier. Moreover, Reed has not shown how a

better recollection by counsel would have been relevant to, or aided

in, his motion for new trial or his appeal, particularly in light of the

fact that the trial court was able to make findings about what

occurred at the bench conferences from their context in the

transcript. Although Reed asserts that the long delay made it

difficult to re-create the unrecorded bench conferences, as discussed

further in Division 5 below, he has failed to show any prejudice

resulting from the lack of transcription.

It is well settled that a bare assertion that a delayed appeal

resulting in “loss of recollection, evidence, witnesses, testimony etc.,”

without specific evidence showing that the delay has prejudiced an

appeal, is insufficient to show the requisite prejudice to demonstrate

a violation of due process. Lord v. State, 304 Ga. 532, 542 (8) (820

11 SE2d 16) (2018) (insufficient to cite delay and assert that the

prejudicial effect is obvious). See also Veal v. State, 301 Ga. 161, 168

(3) (800 SE2d 325) (2017) (“generalized speculation about the delay’s

effect on witness memories and evidence is not the kind of ‘specific

evidence’ required to show prejudice in the appellate-delay context”

(citation and punctuation omitted)); Payne v. State, 289 Ga. 691, 695

(2) (b) (715 SE2d 104) (2011) (general assertions that “witnesses’

memories have likely faded and evidence has probably been lost”

insufficient to show prejudice arising from 15-year delay in appeal).

Accordingly, even if we assume, without deciding, that the other

three factors each would weigh in Reed’s favor, “his failure to make

the requisite showing of prejudice is fatal to his claim of appellate

delay.” Dawson v. State, 308 Ga. 613, 623-24 (4) (842 SE2d 875)

(2020).

3. Reed asserts that the trial court improperly denied his right

to be present at every critical stage of his trial, when the trial judge

conferred with counsel outside Reed’s presence during bench

conferences at his trial.

12 It is well settled that “the Georgia Constitution guarantees a

criminal defendant the right to be present, and see and hear, all the

proceedings which are had against him on the trial before the

Court.” Steen v. State, 312 Ga. 614, 617 (2) (864 SE2d 27) (2021)

(citation and punctuation omitted). See also Zamora v. State, 291

Ga. 512, 517-18 (7) (b) (731 SE2d 658) (2012). This right “attaches

at any stage of a criminal proceeding that is critical to its outcome if

the defendant’s presence would contribute to the fairness of the

procedure.” Nesby v. State, 310 Ga. 757, 758 (2) (853 SE2d 631)

(2021) (citation and punctuation omitted).

Although the right to be present can extend to bench

conferences, it “does not extend to situations where the defendant’s

presence bears no relation, reasonably substantial, to the fullness of

his opportunity to defend against the charge, and thus would be

useless, or the benefit but a shadow.” Champ v. State, 310 Ga. 832,

840 (2) (b) (854 SE2d 706) (2021) (citation and punctuation omitted).

“Such situations include bench conferences that deal with questions

of law involving essentially legal argument about which the

13 defendant presumably has no knowledge, or with procedural or

logistical matters.” Id. (citation and punctuation omitted). See also

Heywood v. State, 292 Ga. 771, 774 (3) (743 SE2d 12) (2013)

(defendant’s absence from such bench conferences did not violate his

right to be present).

Moreover,

the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses. A defendant may relinquish his right in several ways: if he personally waives the right in court; if his counsel waives the right at his express direction; if his counsel waives the right in open court while he is present; or, as seen most commonly in our case law, if his counsel waives the right and the defendant subsequently acquiesces to that waiver.

Champ, 310 Ga. at 841 (2) (c) (citation and punctuation omitted).

But see Hardy v. State, 306 Ga. 654, 660 (2) (b) (832 SE2d 770)

(2019) (“If not waived by the defendant, a direct violation of the right

to be present is presumed prejudicial and requires a new trial.”).

“Acquiescence occurs if a defendant is aware of the proceedings

taking place in his absence but remains silent, so long as he had

sufficient information concerning the matters occurring outside his

14 presence for his silence to be fairly construed as consent.” Steen, 312

Ga. at 617 (2) (citation and punctuation omitted). See also Champ,

310 Ga. at 841 (2) (c); Burney v. State, 299 Ga. 813, 820 (3) (b) (792

SE2d 354) (2016) (Acquiescence “is a tacit consent to acts or

condition” and “implies a knowledge of those things which are

acquiesced in.”). And “[a] trial court’s findings of fact in this regard

will be upheld unless clearly erroneous.” Howard v. State, 307 Ga.

12, 21 (4) (834 SE2d 11) (2019).

In 2019, counsel for Reed and Prickett entered into a

stipulation with the State in which they agreed that there were “26

unrecorded bench conferences” (the “Stipulation”);6 the participating

trial counsel could not recall the substance of what occurred in those

bench conferences; and no amount of time or effort on behalf of the

parties would enable those attorneys to recall what occurred.

6 Although the parties and the trial court repeatedly reference 26 unrecorded bench conferences, the Stipulation only identifies 25 bench conferences. One of the conferences mentioned in the prior motion to complete the record was omitted from the list of bench conferences in the Stipulation and other later filings. The transcript reflects that most of the omitted 26th conference was held in open court without the jury present. 15 Subsequently, the trial court issued an order stating that despite

good faith efforts by all parties involved, the record of those bench

conferences could not be re-created nor the transcript completed.

Reed argues that each of these bench conferences was held outside

his presence in violation of his rights under the Georgia

Constitution.

Reed’s trial counsel was questioned about the bench

conferences at the motion for new trial hearing, and she could not

recall what was discussed during those conferences. However, she

did recall that she had no discussion with Reed before trial

regarding his ability to be present at bench conferences because she

had not had such a conversation with anyone.7 Trial counsel also

explained that at the time of Reed’s trial, it was standard practice

for the attorneys to handle the bench conferences while the

defendant stayed at the defense table. Trial counsel never talked to

Reed about whether he wanted to, or could, object to that practice,

7 Reed’s trial counsel testified that Reed’s trial was the last trial she ever

handled. 16 nor did she request that the bench conferences be recorded.

However, as far as trial counsel could remember, Reed was in the

courtroom during the entirety of the proceeding and sat at counsel’s

table when she went up for bench conferences. She did not know if

Reed could hear what was said during the conferences, but if Reed

had had any concerns, she would have listened to them, or, if she

thought that he had information that would have been helpful to her

arguments during those conferences, she would have consulted with

him.

Reed testified at the hearing that the only conversation he

remembered having with his trial counsel occurred during jury

selection when counsel asked him which jurors he would like to

strike. Reed said he did not realize the importance of bench

conferences and that trial counsel never discussed the issue with

him. He said he never went to the bench for those conferences, and

he could never hear what was being said.

In the order denying Reed’s motion for new trial on this ground,

the trial judge stated that he had reviewed the trial transcript,

17 “specifically in detail the portions in the transcript immediately

prior to and immediately after the unrecorded bench conferences,”

and listened to the testimony at the hearing on the motion for new

trial. From that review, the trial court determined that the

unrecorded bench conferences “dealt with either

logistical/procedural matters or questions of law,” which did not

violate Reed’s right to be present. The trial court further found that

Reed’s presence at the conferences “would have been useless or the

benefit but a shadow” and that Reed had acquiesced in his trial

counsel’s waiver of his presence at the bench conferences.

Reed does not specifically identify or address each of the

individual bench conferences at issue in his appellate brief, nor did

he do so in his trial court briefing. However, during oral argument,

Reed addressed one bench conference that occurred during voir

dire.8 Otherwise, Reed consistently refers to “the 26 Bench

Conferences” collectively and asserts that all of them violated his

8 Reed’s appellate brief addresses another bench conference, which took

place during closing argument, in the context of a different enumeration of error, and that conference will be addressed in Division 5 below. 18 right to be present. From our own review of the bench conferences

identified in the Stipulation, it appears that five of the conferences

occurred during voir dire and jury selection9 and the remainder took

place over the course of the trial after the jury was sworn. Because

Reed’s oral argument singled out one bench conference during voir

dire, we will address the conferences before the jury was seated

separately from the remainder of bench conferences cited in the

Stipulation.

(a) Bench Conferences During Voir Dire and Jury Selection

This Court has recognized that “[j]ury selection is a critical

stage at which a defendant generally is entitled to be present,

including at bench conferences.” Young v. State, 312 Ga. 71, 79 (9)

(860 SE2d 746) (2021), cert. denied, __ U.S. __ (142 SCt 1206, 212

LE2d 215) (2022). Nevertheless, not every bench conference that

9 We note that during argument before the trial court at the hearing on

Reed’s motion for new trial, Reed’s counsel purported to identify seven bench conferences that took place during voir dire and jury selection, and the trial court found that he identified six such conferences, but it appears from our review that only five of the identified bench conferences took place during that process. 19 occurs during the voir dire process necessarily implicates a

defendant’s right to be present. Conferences may occur during voir

dire that involve legal argument or merely procedural or logistical

matters, which do not implicate that right. See Champ, 310 Ga. at

840 (2) (b); Nesby, 310 Ga. at 759 (2). Moreover, as noted above, a

defendant may acquiesce in his trial counsel’s waiver of his presence

at bench conferences involving jury issues where his counsel makes

no objection to his absence and the defendant “remains silent after

he or she is made aware of the proceedings occurring in his or her

absence.” Murphy v. State, 299 Ga. 238, 241 (2) (787 SE2d 721)

(2016).

The transcript reflects that voir dire in this case was conducted

over two days. On the first day, the trial court asked the venire

general questions and considered any claims of hardship. The

second day consisted of individualized voir dire questions, motions

to strike jurors for cause, and jury selection.

(i) General Voir Dire and Hardship Dismissals. Four of the five

bench conferences cited by Reed during voir dire occurred on the

20 first day. In addition to its overall findings regarding the bench

conferences in this case, the trial court determined from its review

of the trial transcript from that day that “the prospective [jurors’]

testimony regarding the hardships and this Court’s decision

regarding dismissal of a juror due to hardships were made in open

court in front of [Reed] and not during the unrecorded bench

conferences.”

The transcript reflects that the general voir dire questions

were posed in open court, including the trial court’s question asking

whether any potential jurors had a hardship affecting their jury

service.10 A number of potential jurors raised their hands when the

trial court asked the question, and the court questioned each of them

about their claims. All but one of these jurors were questioned in

Reed’s presence in open court. The remaining juror stated in open

10 Before asking whether any of the prospective jurors had any hardship

that could affect his or her ability to serve on the jury, and in Reed’s presence, the trial court provided a detailed explanation of the nature of the hardships that could lead to release from jury service and distinguished those hardships from “inconvenience hardships,” which he said would not qualify for a dismissal. This explanation outlined the various factors the trial court would consider in determining whether to dismiss a juror on the basis of hardship. 21 court that she had a medical hardship but preferred to speak to the

judge privately. She was later questioned about her claimed

hardship at the bench, and that questioning was transcribed for the

record. The transcript reflects that after the trial judge questioned

the juror about her medical condition, he told her that she would be

released.11

A short time after that bench conference, the trial judge

informed the venire that he would be releasing them for the day but

first wanted to instruct them regarding the next day’s procedures.

The trial court then stated that if the bailiff gave any member of the

venire “a slip,” that meant the judge had granted his or her hardship

request, and those members did not have to return the next day. The

trial judge thus released those prospective jurors from further jury

service and continued his instructions for the remaining members of

the venire.

11 At oral argument, Reed’s counsel agreed that the trial court’s decision

to release that juror was made in open court. We note, however, that the transcript does not clearly reflect whether the trial court went back on the record for that announcement. 22 Reed’s counsel asserted at oral argument that, contrary to the

trial court’s finding as to all the bench conferences, the conference

concerning the hardship that the juror declined to explain in open

court implicated his right to be present because the potential juror

was questioned outside his presence.12 See Champ, 310 Ga. at 840

(2) (b) (appellant had right to be present at bench conferences

involving or related to direct discussions between the trial court and

prospective jurors and decisions to remove prospective jurors).

Under these circumstances, we conclude that, even assuming that

all four of the bench conferences during this portion of voir dire

implicated Reed’s right to be present, Reed’s trial counsel waived

Reed’s presence, and Reed acquiesced in that waiver. There is no

dispute that Reed was in the courtroom throughout the voir dire

process, and aware of each of the bench conferences, and he raised

no objection to this procedure. The general voir dire questions and

the questioning of all but one of the jurors asserting hardships were

12 However, Reed has raised no such particularized argument in briefing

or at oral argument addressing or contesting the trial court’s finding as to the nature of any of the other bench conferences that day. 23 made in Reed’s presence, allowing him to hear the basis on which

those jurors sought to be excused from jury service. Reed was also

aware that the remaining juror was seeking to be excused based on

a medical condition, and Reed was in the courtroom when she was

called to the bench to discuss her condition, but neither he nor his

counsel objected to the questioning of that juror outside Reed’s

presence. Shortly thereafter, the trial court dismissed the jurors

with hardships in open court and there is no contention that Reed

could not observe the procedure of the bailiff handing the dismissed

jurors their paperwork or that he could not otherwise identify those

jurors who were excused on this basis. Neither Reed nor his counsel

objected in court to the dismissal of any of those jurors.

Accordingly, we conclude that Reed is not entitled to a new trial

based on the bench conferences during this portion of voir dire. See

Young, 312 Ga. at 79 (9); Murphy, 299 Ga. at 241-42 (2).

(ii) Individual Voir Dire and Jury Selection. Only one disputed

bench conference occurred on the second day of voir dire. The

transcript reflects that the potential jurors were individually

24 questioned in Reed’s presence, and the trial court found that

“counsel’s arguments to strike potential jurors for cause, and this

Court’s ruling regarding those strikes, were made at the conclusion

of the voir dire process[,] . . . in open court where [Reed] could hear

all of the arguments and rulings.” Reed does not contest the trial

court’s finding that these matters occurred in open court and in his

presence.

After this portion of voir dire concluded, the transcript shows

that the trial court allowed Reed and Prickett to move their chairs

to better participate in the jury selection process with their counsel,

and Reed testified that his trial counsel consulted him in the

exercise of his peremptory strikes. The parties then silently

exercised their peremptory strikes by passing the jury list back and

forth. The one bench conference Reed identified from this phase of

voir dire occurred immediately after this process when the trial

court called counsel to the bench. After this conference, when the

proceedings went back on the record, the trial court asked counsel

whether they had any motions, and they stated they did not. The

25 jury was then announced and seated.

Reed has made no effort to contest the trial court’s finding,

based on the court’s review of the transcript, that this conference

involved legal, procedural, or logistical matters, as to which his

presence was not required. The fact that the bench conference was

not transcribed does not relieve him of this burden of presenting

evidence that “the bench conference[ ] about which he complains

[was] the sort that implicated his right to be present. Mere

speculation as to what may have been discussed at the conference[ ]

cannot serve as the basis for the grant of a new trial.” Nesby, 310

Ga. at 759 (2) (citation and punctuation omitted). See also Reeves v.

State, 309 Ga. 645, 648 (2) (847 SE2d 551) (2020); Daughtie v. State,

297 Ga. 261, 267 (5) (773 SE2d 263) (2015).

Thus, Reed is not entitled to a new trial based on this bench

conference.

(b) Bench Conferences During Trial

The 20 remaining bench conferences identified in the

Stipulation occurred over the course of the trial. As noted above, the

26 trial court found that all of these conferences “dealt with either

logistical/procedural matters or questions of law,” which did not

violate Reed’s right to be present. Reed has made no effort to address

these conferences individually to contest the trial court’s finding or

to show that a particular conference during trial implicated his right

to be present, and based on our review, we conclude that the trial

court’s findings are supported by the record. See Nesby, 310 Ga. at

759 (2); Heywood, 292 Ga. at 774 (3); Reeves, 309 Ga. at 648 (2);

Daughtie, 297 Ga. at 267 (5).

Accordingly, we conclude that Reed is not entitled to a new trial

based on these untranscribed bench conferences.

4. Reed next contends that the DA’s office should have been

disqualified from prosecuting him because his attorney of record was

working for the DA’s office at the time of his trial, presenting a

conflict of interest. A conflict of interest is one generally recognized

ground for disqualification of a prosecuting attorney, and such a

conflict “has been held to arise where the prosecutor previously has

represented the defendant with respect to the offense charged, or

27 has consulted with the defendant in a professional capacity with

regard thereto.” Williams v. State, 258 Ga. 305, 314 (2) (B) (369 SE2d

232) (1988) (noting two generally recognized grounds for

disqualification of prosecutor: conflict of interest and “forensic

misconduct” (citation and punctuation omitted)).

At the hearing on Reed’s motion for new trial, Edward Chase,

formerly employed as an attorney by the Fulton County Office of the

Public Defender (the “PD’s office”), testified that he was appointed

to represent Reed, and the record reflects that, in that capacity,

Chase filed an entry of appearance in Reed’s case on July 2, 2010,

along with consolidated pretrial motions, discovery requests and

notices, and a motion to set bond. Chase also represented Reed at

his arraignment on July 2 and at a bond hearing on July 16. In

October 2010, Reed’s trial was specially set for May 2, 2011.13

Subsequently, in December 2010, Chase interviewed for

13 Reed does not assert that Chase engaged in any further action on his

behalf. In fact, the record contains no indication that counsel for any party or the trial court took any action in the case from October 10, 2010, when the trial was specially set, to March 17, 2011, when the State served a subpoena on a witness. 28 employment with the DA’s office and started work with that office

on February 2, 2011. However, Chase never filed a formal motion to

withdraw as Reed’s counsel; instead, as was the practice at the time,

another attorney in the PD’s office, who became Reed’s trial counsel,

took over the cases previously handled by Chase.

Chase testified at the hearing on the motion for new trial that

after he left the PD’s office, Reed’s trial counsel immediately began

handling Reed’s case.14 Once Chase began his employment with the

DA, no one there ever asked him, and, as a matter of intention, he

never talked to anyone there, about Reed’s case or any of his other

cases with the PD’s office. Chase said he had no regular contact with

the prosecutor in Reed’s case as he was assigned to a different

division, and the judge to whose courtroom Chase was assigned was

not the judge presiding over Reed’s trial.

However, pretermitting whether Chase’s prior employment as

14 Although Reed’s trial counsel never filed a formal entry of appearance

or notice of substitution of counsel, the State referred to her as Reed’s counsel of record in a discovery demand filed April 11, 2011, and her first court filing on Reed’s behalf was on April 22, 2011, about ten days before trial. 29 Reed’s counsel presented a conflict of interest disqualifying the DA’s

office from prosecuting Reed, we conclude that Reed has waived this

issue for appeal because he did not raise it in a timely manner.

Although we have not considered when a motion to disqualify a

prosecutor based on an alleged conflict of interest should be

asserted, we have held, in other contexts, that such challenges must

be raised promptly after the defendant learns of a potentially

disqualifying matter. See Battle v. State, 298 Ga. 661, 666 (2) (a)

(784 SE2d 381) (2016) (where defendant learned of the grounds for

potential disqualification of the trial judge before trial, and failed to

raise issue until after trial, “he could not do so and still preserve the

disqualification issue for review in the appellate courts” (citation

and punctuation omitted)); Gary v. State, 260 Ga. 38, 42 (7) (389

SE2d 218) (1990) (failure to raise motion for recusal in timely

manner precludes appellate review); Hudson v. State, 250 Ga. 479,

481 (1) (299 SE2d 531) (1983) (where defendant asserts that his

appointed trial counsel should have been disqualified based on his

contemporaneous service as probate judge and state court solicitor,

30 “the objection to counsel must be made without delay, at the first

opportunity after the accused learns of the grounds for

disqualification”), questioned on other grounds, Bass v. State, 285

Ga. 89, 94 (674 SE2d 255) (2009).

Here, Reed’s trial attorney was aware of Chase’s employment

with the DA’s office several months before trial, as she worked for

the PD’s office and took over Chase’s cases when he left to take his

new job. Yet, she failed to assert a conflict of interest nor did she

seek to disqualify the DA’s office; instead, Reed first raised the issue

in a post-trial motion for new trial.15 We conclude this delay

15 Reed asserts in his appellate brief that “[i]t appears that all the parties, except [him] were fully aware of this conflict and that no one, neither the [DA], [his] new trial attorney, nor the Trial Court attempted to address this conflict, which was in violation of [his] rights.” However, absent a demonstration of ineffectiveness, Reed is “deemed bound by the acts of his lawyer-agent and is considered to have notice of all facts, notice of which can be charged upon the attorney.” New York v. Hill, 528 U.S. 110, 115 (II) (120 SCt 659, 145 LE2d 560) (2000) (citations and punctuation omitted). See Jackson v. Faver, 210 Ga. 58, 58-59 (4) (77 SE2d 728) (1953) (“[K]nowledge acquired by an attorney in the course of his employment, and pertinent and relevant to the subject matter of his employment, is imputable to his client.”). “Thus, decisions by counsel are generally given effect as to what arguments to pursue.” Hill, 528 U.S. at 115 (II). Despite the contention that his trial attorney was aware, but failed to inform him or raise the issue of this alleged conflict of interest, Reed does not assert a claim for ineffective assistance of counsel on this ground. 31 precludes our review of the matter on appeal.

5. Reed further contends that he was denied due process when

the State failed to preserve a true and correct copy of the trial

transcript, in particular, any transcription of the bench conferences

discussed in Division 3, above, and thus denied him the ability to

properly appeal his convictions.

Georgia law requires that a transcript be prepared of all

evidence and proceedings in felony cases. See OCGA § 5-6-41.

However, Reed acknowledges that the missing portions of the

transcript alone do not entitle him to a new trial; rather he must

show that he was harmed as a result of the incomplete transcription.

See Bradford v. State, 299 Ga. 880, 882 (4) (a) (792 SE2d 684) (2016)

(failure to record bench conferences “does not constitute reversible

error absent a showing of prejudice to the defendant”).

Reed has failed to make that showing. Although Reed claims

that the transcription of the bench conferences would have allowed

him to show that his absence from those conferences was reversible

error, the trial court was able to determine the subject of those

32 conferences from their context within the transcript, and we have

concluded that those findings are supported by the record. Also,

although Reed points to one bench conference that occurred during

the prosecution’s closing argument, which he contends “was vital to

[Reed’s] ability to raise an error,” he provides no explanation as to

why or how this bench conference was vital to his appeal. That bench

conference took place after Prickett’s counsel objected when the

prosecutor referred to a portion of a recorded jailhouse conversation

between Prickett and another witness that had been redacted and

not published to the jury during trial. Although the bench conference

was not transcribed, Prickett’s counsel was allowed to put his

objection on the record at the conclusion of the State’s closing

argument, in open court and in Reed’s presence. Reed raised no

objection in the trial court and no issue on appeal arising from this

bench conference. 16 Nor has Reed offered any explanation as to how

the prosecutor’s reference to matters outside the evidence involving

16 We note that, in his own appeal, Prickett relied on the existing record

to assert error in the trial court’s response to his counsel’s objection. 33 his co-defendant would give him a ground for appeal that he is now

prevented from asserting.

Under these circumstances, we see no merit to Reed’s

argument on this ground as he has failed to show any prejudice to

his ability to prepare his appeal from the failure to transcribe that

or any other bench conference.

6. Reed also asserts that he was denied the right to effectively

confront his accusers when the State failed to turn over exculpatory

evidence contained in Crime Stoppers reports in violation of Brady.

To prevail on a Brady claim, a defendant must establish four factors:

(1) [t]he State, including any part of the prosecution team, possessed evidence favorable to the defendant; (2) the defendant did not possess the favorable evidence and could not obtain it himself with any reasonable diligence; (3) the State suppressed the favorable evidence; and (4) a reasonable probability exists that the outcome of the trial would have been different had the evidence been disclosed to the defense.

McCray v. State, 301 Ga. 241, 246 (2) (c) (799 SE2d 206) (2017)

(citation and punctuation omitted). Reed bears the burden of proof

on each of these elements. See Harris v. State, 313 Ga. 653, 664 (5)

34 (872 SE2d 732) (2022).

In April 2019, Reed’s intermediate appellate counsel filed a

post-trial Brady motion to obtain exculpatory evidence, including

evidence of any payments by Crime Stoppers Atlanta to three of the

State’s witnesses, Burns, Wilson, and Smith. The evidence at a

subsequent hearing on that motion showed the following. Crime

Stoppers is a private entity, separate from the DA’s office and the

Atlanta Police Department (the “APD”), and is governed by a group

of business and community leaders, not the APD. Tips to the Crime

Stoppers phone line are handled anonymously and identified by a

number. Following a “meaningful prosecution,” the tip goes to an

independent board that determines its value. The APD never knows

whether a tipster received money for a tip, and the evidence was

unclear as to whether any records exist showing payments to

individuals by name, rather than by tip number.

Crime Stoppers offered a reward for information on Curry’s

murder, and David Quinn, the lead detective on the case, announced

this reward on the evening news the night of the crime. Reed asserts

35 that the three witnesses wanted the Crime Stoppers money. When

cross-examined at trial, Wilson denied receiving any payment from

Crime Stoppers but, on cross-examination, admitted asking about

whether there was any money for him. Burns admitted asking

Detective Quinn for the Crime Stoppers money, but the detective

told him that APD had nothing to do with it. Smith was not

questioned about Crime Stoppers. Reed has pointed to no evidence

showing that either the APD or the DA’s office had any record of

payments to those witnesses.

Because Reed failed to present any evidence that the State was

in possession of, and failed to disclose, exculpatory information from

Crime Stoppers, his claim that the trial court violated his rights

under Brady and the Sixth Amendment fails. See Harris, 313 Ga. at

664-65 (5) (“Brady requires information to be revealed only when it

is possessed by the prosecutor or anyone over whom the prosecutor

has authority.” (citation and punctuation omitted)); State v. Hill, 295

Ga. 716, 719 (763 SE2d 675) (2014) (no Brady violation where the

defendant “failed to show that the State either possessed or

36 suppressed any favorable evidence”).

7. Reed further argues that the trial court committed reversible

error by refusing his request for a continuance to allow his counsel

time to investigate Feggins, whom he contends was a “surprise

witness” for the State.

“All applications for continuances are addressed to the sound

legal discretion of the court and . . . shall be granted or refused as

the ends of justice may require.” OCGA § 17-8-22. See also Anglin v.

State, 312 Ga. 503, 510 (2) (a) (863 SE2d 148) (2021) (“A trial court

has broad discretion in granting or denying a motion for

continuance.”). “Without a clear showing of abuse of this broad

discretion, this Court will not disturb a trial court’s decision to deny

a motion for continuance.” Phoenix v. State, 304 Ga. 785, 788 (2) (822

SE2d 195) (2018).

Under OCGA § 17-16-8 (a), not later than ten days before trial,

the State is generally required to identify all its witnesses for trial

and provide specific information about them to the defense, unless

37 the trial court permits an exception for good cause.17 The record

shows that five to six days before trial, around April 27 or 28, 2011,

Prickett’s trial counsel served the State with a defense witness list

that included Feggins’s name, among others, and a handwritten

witness statement from Feggins showing a phone number. The

record contains no evidence that the State had knowledge of Feggins

before Prickett’s counsel named her as a potential witness. On April

29, the State filed a Supplemental Certificate of Discovery attaching

the witness statements provided by Prickett’s counsel, along with a

copy of an e-mail the State sent the day before notifying Reed’s

counsel that the State was interviewing the witnesses on Prickett’s

list and that it intended to call one of them (not Feggins) at trial and

offering to provide the witness statements if Reed’s defense did not

17 OCGA § 17-16-8 (a) provides:

The prosecuting attorney, not later than ten days before trial, . . . shall furnish to the opposing counsel . . . the names, current locations, dates of birth, and telephone numbers of that party’s witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.

38 have them.

On the first day of trial, Monday, May 2, the State filed a

certificate showing service of a subpoena on Feggins, and two days

later, after the jury was selected, Reed’s counsel objected to

Feggins’s testifying, saying that she felt “ambushed” by the witness.

The prosecutor represented that the State only learned of Feggins

from Prickett’s counsel and interviewed Feggins the previous

Friday. The prosecutor indicated that the State had served Feggins

with a subpoena in case Prickett decided not to call her and said that

the State might call Feggins depending on how the evidence

developed. The trial court reserved ruling on the issue at that time.

Later the same day, after the State had presented eight

witnesses, the prosecutor announced that it intended to call Feggins

as a witness the next day. The prosecutor represented that Feggins

would provide exculpatory testimony for Prickett and “damning

information” for Reed. Reed’s counsel again objected and requested

that the trial court bar Feggins’s testimony or grant Reed a

continuance to allow the defense to fully investigate Feggins. The

39 trial court denied Reed’s request for a continuance, stating that it

found no violation of the discovery statutes by the State, but the

court stated that Reed’s counsel would be given time to interview

Feggins before she testified.

The State did not call Feggins as a witness until Friday, May

6, two days after announcing its intent to put her on the stand.

Reed’s counsel filed an amended motion seeking to bar Feggins from

testifying or, in the alternative, for a continuance, asserting that the

defense had not been provided complete information for Feggins,

such as a date of birth. The State represented that it had supplied

the information it had and offered to provide Reed’s counsel with a

printout of Feggins’s criminal history, if any. The trial judge denied

Reed’s amended motion, but directed that the State provide counsel

with the printout and date of birth and stated that he would delay

the proceedings to allow Reed’s counsel to interview Feggins. The

trial judge further stated that if counsel identified “anything else

concrete” that the defense needed based on the interview and the

information provided, he would consider that issue at the time it was

40 raised. The record indicates that the State supplied the printout,

which the prosecutor asserted did not contain anything the defense

could use to impeach Feggins, and it appears that Reed’s counsel

was afforded the opportunity to interview Feggins during a recess in

proceedings. The record contains no further request for information

or a continuance from Reed’s counsel before Feggins testified later

that day.

Based on this record, we cannot say that the trial court abused

its discretion in denying the motion for continuance. See Brittian v.

State, 299 Ga. 706, 707-08 (2) (791 SE2d 810) (2016) (no abuse of

discretion in denying motion for continuance where State added

sixteen new witnesses ten days before trial and the trial court

ensured that, during the course of the trial, the defendant would be

provided with an opportunity to interview the witnesses who

testified); Norris v. State, 289 Ga. 154, 156 (2) (709 SE2d 792) (2011)

(finding no abuse of discretion in denial of continuance after state

amended witness list less than ten days before trial to add forty-five

new witnesses, two of whom were previously unmentioned in the

41 State’s discovery, and failed to provide complete contact information

for the other witnesses, where defense was given opportunity to

interview the witnesses who were allowed to testify).

8. Reed asserts that he was denied his right to effective

assistance of counsel guaranteed by the Sixth and Fourteenth

Amendments to the United States Constitution. To succeed on his

claims of ineffective assistance of counsel, Reed must satisfy both

prongs of the test set out in Strickland, 466 U.S. at 687 (III).

First, [Reed] must show counsel’s performance was deficient by showing counsel made errors so serious that he was not functioning as the counsel guaranteed to him by the Sixth Amendment. [Reed] must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. Second, [Reed] must show the deficient performance prejudiced the defense, which requires showing that counsel’s errors were so serious that they likely affected the outcome of the trial.

Kilpatrick v. State, 308 Ga. 194, 201 (7) (839 SE2d 551) (2020)

(citations and punctuation omitted). To establish the requisite

prejudice, therefore, Reed must demonstrate “a reasonable

probability that, in the absence of counsel’s deficient performance,

42 the result of the trial would have been different[,] . . . [which means]

a probability sufficient to undermine confidence in the outcome.”

Hood v. State, 308 Ga. 784, 786 (2) (843 SE2d 555) (2020) (citations

and punctuation omitted). See also Strickland, 466 U.S. at 694 (III).

Because an appellant must satisfy both Strickland prongs, we need

not “approach the inquiry in the same order or even . . . address both

components of the inquiry if the [appellant] makes an insufficient

showing on one.” Strickland, 466 U.S. at 697 (IV).

(a) Reed contends that his trial counsel provided ineffective

assistance by failing to object to his absence at the bench conferences

identified in the Stipulation, in violation of his right to be present at

all critical stages of his trial. However,

[w]hen an alleged violation of the Georgia constitutional right to be present is raised not directly but rather as a claim of ineffective assistance of counsel, the defendant must show both that his lawyer acted deficiently in not asserting his right and that this deficiency caused actual prejudice to the outcome of his trial.

Hardy, 306 Ga. at 661 (3). See also Peterson v. State, 284 Ga. 275,

276, 280 (663 SE2d 164) (2008).

43 As discussed above, Reed has made no attempt to show that he

had a right to be present at any of the identified bench conferences

except the one bench conference during voir dire in which the

prospective juror with the medical condition was questioned. And

even if we were to assume that Reed’s trial counsel performed

deficiently in waiving his presence at that conference, Reed has

failed to show that his counsel’s waiver caused him any prejudice.

Reed has made no argument, for example, that if he had attended

that conference, he would have objected to the dismissal of that juror

on the basis of hardship. In any event, Reed has not shown a

reasonable probability that but for his trial counsel’s waiver of his

presence at any of the bench conferences, the outcome of his trial

would have been different. Therefore, Reed’s claim on this ground

fails. See Hardy, 306 Ga. at 661 (3).

(b) Reed also asserts that his trial counsel performed

deficiently by failing to ensure a complete transcription of his trial,

in particular the unrecorded bench conferences, in violation of

OCGA § 5-6-41. However, even if we assume that trial counsel was

44 deficient in this regard, we concluded in Division 5 that Reed failed

to show any prejudice resulting from the missing portions of the

transcript in Reed’s ability to prepare his appeal, and we further

conclude that he cannot show a reasonable probability that the

incomplete transcript affected the outcome of the trial, as required

to establish a claim of ineffective assistance of counsel.

(c) Reed further argues that his trial counsel rendered

ineffective assistance of counsel when he failed to object to a

“presumption of truthfulness” pattern jury charge given by the trial

court because that charge had previously been disapproved by this

Court 25 years earlier. See Noggle v. State, 256 Ga. 383, 385-86 (4)

(349 SE2d 175) (1986) (stating that the presumption of truthfulness

charge given in that case could be misleading and was of little

positive value).

The trial court gave the following jury charge:

When you consider the evidence in this case, if you find a conflict, you should settle this conflict, if you can, without believing that any witness made a false statement. If you cannot do so, then you should believe that witness or those witnesses whom you think are most — whom you

45 think are best entitled to belief. You must determine what testimony you will believe and what testimony you will not believe.

Reed argues that this language instructed the jury that they should

believe a witness unless it is proven the witness is not worthy of

belief, which shifts the burden to the defendant to discredit a

witness.

However, any objection to this charge would have been

meritless, as at the time of Reed’s trial this Court had held that a

charge similar to the one given in this case is not a “presumption-of-

truthfulness” instruction like the charge disapproved in Noggle and

was a permissible charge. See Mallory v. State, 271 Ga. 150, 151 (2)

(517 SE2d 780) (1999). In that case, we noted that the two charges

are “distinctly different,” explaining that the charge disapproved in

Noggle

established a presumption that witnesses speak the truth unless they are impeached, that is, that an unimpeached witness must be believed. By contrast, the charge involved here contains no suggestion that an unimpeached witness must be believed, but merely urges the jury to attempt to reconcile conflicting testimony before considering the credibility of witnesses.

46 Id. See also Smith v. State, 292 Ga. 588, 590 (3) (740 SE2d 129)

(2013) (holding that the pattern charge given was not a

presumption-of-truthfulness charge); Guyton v. State, 281 Ga. 789,

791 (2) (642 SE2d 67) (2007) (same). Therefore, at the time of Reed’s

trial in 2011, the existing precedent held that the use of the charge

in this case was not error. See Mallory, 271 Ga. at 151 (2); Guyton,

281 Ga. at 791 (2). Because the failure to make a meritless objection

cannot form the basis of a claim of ineffective assistance of counsel,

see Moss v. State, 298 Ga. 613, 617 (5) (a) (783 SE2d 652) (2016), “we

cannot say that [trial] counsel performed in an objectively

unreasonable way by failing to object to a pattern jury instruction

that had been approved by controlling case law at the time of

[defendant’s] trial.” Smith v. State, 308 Ga. 81, 89 (3) (839 SE2d 630)

(2020).18

18 For purposes of analysis, we have assumed two deficiencies on the part

of trial counsel, each of which we found to be harmless. Reed does not argue that these deficiencies cumulatively resulted in prejudice, and we discern no apparent cumulative prejudice on this record. See State v. Lane, 308 Ga. 10, 18 (1) (838 SE2d 808) (2020) (“[A] defendant who wishes to take advantage of the

47 9. Reed argues that the trial court improperly sentenced him

to life in prison under both Counts 1 and 2 (malice murder and felony

murder respectively), when the felony murder conviction stood

vacated by operation of law. The State agrees and concedes that the

trial court erred in sentencing Reed on the felony murder count. See

Lucky v. State, 286 Ga. 478, 480 (2) (689 SE2d 825) (2010) (when the

jury returns guilty verdicts on both felony murder and malice

murder charges in connection with the death of one person,

defendant should be sentenced only on malice murder).

Accordingly, we affirm the judgment of conviction for malice

murder under Count 1 and vacate the judgment of conviction for

felony murder under Count 2. See Lucky, 286 Ga. at 482 (2). And

because Reed’s sentence for possession of a firearm during the

commission of a felony under Count 5 was run consecutively to his

sentence in Count 2, which now stands vacated, we remand the case

to the trial court for resentencing.

[cumulative error rule] should explain to the reviewing court just how he was prejudiced by the cumulative effect of multiple errors.”). 48 Judgment affirmed in part and vacated in part, and case remanded for resentencing. All the Justices concur.

Decided September 7, 2022.

Murder. Fulton Superior Court. Before Judge Glanville.

Sharp Georgia Law Firm, Randall P. Sharp, for appellant.

Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.

Armstrong, Juliana Y. Sleeper, Aslean Z. Eaglin, Karen S. Bemis,

Assistant District Attorneys; Christopher M. Carr, Attorney General,

Patricia B. Attaway Burton, Deputy Attorney General, Paula K.

Smith, Senior Assistant Attorney General, Parisa F. Sarfarazi,

Assistant Attorney General, for appellee.