NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court
Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the
opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any
prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and
official text of the opinion.
In the Supreme Court of Georgia
Decided: September 7, 2022
S22A0530. REED v. STATE.
MCMILLIAN, Justice.
Jaquavious Reed appeals his conviction for murder and other
charges in connection with the death of Antwan Curry. 1 On appeal,
1Curry 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 number S22A0531.
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
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
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.
2
counsel with regard to the bench conferences, the incomplete
transcript, and his trial counsel’s failure to object to the
“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
3
continued to struggle with Prickett, until Prickett was shot in the
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 Case No. S22A0531.
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) (citation and 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 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
punctuation omitted).
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 recreate 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
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
occurred. 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 recreated 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,
Reed’s trial counsel testified that Reed’s trial was the last trial she ever
7
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 4 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 (10); 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
13Reed 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
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 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
16We 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 omitted). Reed bears the burden of proof on each of these
elements. See Harris v. State, 313 Ga. 653, 664 (5) (872 SE2d 732)
34
(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 email 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 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) (citation and punctuation omitted). 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-oftruthfulness” 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 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
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.
Judgment affirmed in part and vacated in part and case
the [cumulative error rule] should explain to the reviewing court just how he
was prejudiced by the cumulative effect of multiple errors.”).
48
remanded for resentencing. All the Justices concur.
49