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WARD v. THE STATE (Two Cases)

2023-05-16

Summary

Holding. The court affirmed the convictions of both Ward and Dewberry.

Michael Ward and Frederick Dewberry were convicted of malice murder and felony murder in connection with the stabbing death of an inmate named Antonio Wiley, and aggravated assault related to the stabbing of another inmate, Wydreicus Denison. Both men appealed, challenging the sufficiency of the evidence and various trial court rulings. The crimes occurred in a prison setting involving rival gang members, with Wiley stabbed approximately 65 times. A key witness, fellow inmate Dante Morris, testified that he observed both defendants participating in Wiley's stabbing as part of a gang-related "hit" ordered due to a cell-phone-battery debt. Denison, the other victim, initially provided inconsistent testimony but ultimately identified both men as his attackers.

Ward challenged the sufficiency of evidence supporting his convictions and claimed the trial court erred in denying his motion for a new trial under Georgia's general grounds statutes. Dewberry raised additional objections regarding the presence of numerous uniformed officers and tactical personnel in the courtroom, the visible restraints worn by one of his defense witnesses, and alleged violations of witness sequestration rules. The appellate court found the evidence sufficient in both cases, noting that Morris's eyewitness testimony and Denison's identification, viewed in the light most favorable to the verdicts, established the defendants' guilt beyond a reasonable doubt as parties to the crimes.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of evidence to support malice murder and aggravated assault convictions
  • Party-to-the-crime liability for murder without directly causing fatal injuries
  • Trial court discretion regarding security measures and police presence in courtroom
  • Credibility determinations regarding inconsistent witness testimony
  • Witness restraint decisions and sequestration rule application

Procedural posture

Ward and Dewberry appealed their convictions from jury trial, challenging the sufficiency of evidence and various trial court evidentiary and procedural rulings.

Authorities cited

Opinion

majority opinion

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: May 16, 2023

S23A0139. WARD v. THE STATE.

S23A0140. DEWBERRY v. THE STATE.

PINSON, Justice.

Appellants Michael Ward and Frederick Dewberry were

convicted of malice murder and felony murder in connection with

the stabbing death of Antonio Wiley and aggravated assault in

connection with the stabbing of Wydreicus Denison. 1 On appeal,

The crimes occurred on August 28, 2011. On March 27, 2013, a

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Columbia County grand jury indicted Ward, Dewberry, and four co-defendants,

Frankie Jay Henry III, Jean Baptiste Fortie, Norman Patrick Simpson, and

Richard James, for malice murder (Count 1) and felony murder predicated on

aggravated assault (Count 2) in connection with Wiley’s death. The grand jury

also indicted Ward, Dewberry, and James, as well as Dedrick Octavious Crews,

Miracle Nwakanama, and Chas Clifford Cannon, for aggravated assault

(Count 3) in connection with Denison’s stabbing. Ward, Dewberry, and Henry

were jointly tried by a jury from September 14 to 17, 2015. The jury found

Ward and Dewberry guilty of all counts. The jury found Henry guilty of Counts

1 and 2, and his convictions were affirmed by this Court in Henry v. State, 307

Ga. 281 (835 SE2d 602) (2019). Ward and Dewberry were each sentenced to

serve life in prison without the possibility of parole on Count 1 and 20 years to

be served consecutively on Count 3. The trial court improperly merged the

Ward contends that (1) the evidence was not sufficient to support

his convictions, and (2) the trial court erred in denying his motion

for a new trial based on OCGA §§ 5-5-20 and 5-5-21—that is, the

general grounds. But the evidence of Ward’s guilt here, including

eyewitness testimony, was sufficient, and Ward has not shown that

the trial court abused its discretion in declining to grant a new trial

on the general grounds. So we affirm Ward’s convictions.

In his appeal, Dewberry contends that the trial court erred by

(1) denying his motion for directed verdict of acquittal on the murder

and aggravated assault charges; (2) allowing a “heavy police

presence” in the courtroom in violation of his right to a fair trial; (3)

felony murder count into the malice murder count. The trial court corrected

Ward’s sentence to reflect that the felony murder count was vacated by

operation of law. While the trial court did not correct his sentence, Dewberry’s

felony murder count was also vacated by operation of law. See Malcolm v.

State, 263 Ga. 369, 371-372 (434 SE2d 479) (1993).

Ward filed a motion for new trial, which he amended through new

counsel on February 28, 2022. Following a hearing, the court denied the motion

for new trial on July 22, 2022. Ward filed a timely notice of appeal.

Dewberry filed a motion for new trial, which he amended through new

counsel on March 10, 2022. Following a hearing, the court denied the motion

for new trial on July 20, 2022. Dewberry filed a timely notice of appeal.

These cases were docketed to the term of this Court beginning in

December 2022 and submitted for decisions on the briefs.

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leaving a defense witness in visible restraints; and (4) not declaring

a mistrial after the prosecutor conferred with a witness, in violation

of the rule of sequestration. Each claim fails. As with Ward, the

evidence was sufficient to support Dewberry’s convictions, so the

trial court did not err in denying his motion for directed verdict. The

trial court did not abuse its discretion in allowing the police presence

in the courtroom under the circumstances here—a trial for murder

and aggravated assault occurring inside a prison and involving rival

gangs, where all three defendants were maximum security inmates,

and two had substantial prison disciplinary records. Finally, the

rule of sequestration did not forbid the prosecutor from speaking

privately with a witness under the circumstances here. So we also

affirm Dewberry’s convictions.

1. On August 28, 2011, two inmates were stabbed at Augusta

State Medical Prison. Wydreicus Denison was stabbed multiple

times around 7:15 a.m.; he survived his injuries. Later that

afternoon, Antonio Wiley was stabbed at least 65 times, and he died

as a result of blood loss. The evidence at trial, viewed in the light

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most favorable to the verdicts, showed the following.

With respect to the stabbing of Denison, Denison himself

ultimately testified that Ward and Dewberry were among his

attackers. On direct examination, Denison, who had been diagnosed

with paranoid schizophrenia, testified that he thought he

remembered who stabbed him, but that he did not see any of those

people in the courtroom. The prosecutor then impeached him with

several prior statements, which showed Denison initially denying

knowing who stabbed him, but then identifying Ward and Dewberry

as two of his attackers. On cross examination, Denison said he wrote

a letter around three months after the incident to “[e]verybody who

had any control over the institution” “[b]ecause I lied. I lied on those

guys right there.” He claimed that he was “coerced” by the GBI to

make his earlier statements and said “I don’t know who stabbed me,

really, to be honest.” After further questioning, however, Denison

said,

Y’all clients, they know what’s going on, man, you know.

I’m really tired of dealing with this, you know, they know

what they did, you know. . . . And the statement I just

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made about they didn’t do nothing, I was scared, I’m still

scared, you know. . . . I go back to prison, then what? Then

what? But they did stab me, yeah, them two right there,

they stabbed me.

As for the stabbing of Wiley, Department of Corrections

Sergeant Latonia King, who was on duty on the day of the stabbings,

said it happened between 1:00 and 2:30 p.m. in the yard outside one

of the prison dorms, when between 75 and 100 inmates were outside.

Officers tried to get the inmates to return to the dorm after the

stabbing, and King assisted, but the inmates “were really rowdy,

upset, yelling.” King noticed Wiley lying across the doorway leading

into the dorm, barely breathing. Inmates surrounding Wiley told

King “we’re gonna kill y’all officers if y’all don’t help our homeboy.

We’re gonna F one of y’all up today.” As she tried to move Wiley to a

gurney, the inmates, including Dewberry, started groping her.

Dante Morris, another inmate at the time, explained that he

was associated with the Muslim Brotherhood in the prison, but three

gangs were also represented there: the Atlanta Mob and Gangster

Disciples, who were affiliated in the prison, and the Bloods, who

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were not affiliated with any other gang there. Wiley, who had

recently transferred from Hays State Prison, was a Blood; Henry

was a Mob member; and Ward and Dewberry were Gangster

Disciples.

Morris testified that someone “put out a hit on [Wiley]” from

Hays State Prison over a $50 cell-phone-battery debt. When out in

the yard on the day of the stabbing, Morris saw a lot of Gangster

Disciple and Mob members around Wiley, leading him out the door.

They led him around a corner to an area that was not easily visible,

and “once they start talking, Rump[ 2] pulled out a knife and he start

to stick him.” “After Rump, you had Big Maine[ 3]—you had Young

Money,[4] Rump, Big Maine, Little Nate, Bankhead.[ 5] There was

more of them but—and Fortie.” He estimated that eight to eleven

people were stabbing Wiley, but he “could just see the ones running

up and sticking him, then the main four that stayed that’s obviously

2 The record does not identify who Rump is.

3 Ward’s nickname was Big Maine.

4 Henry’s nickname was Young Money.

5 Dewberry’s nickname was Bankhead.

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constantly sticking him.”

Once all the inmates were moved back into the dorm, Morris

noticed some inmates “tried to set [clothes] on fire,” explaining that

it was standard practice to change clothes after an incident of

violence if the clothes were bloody.6 He also explained that different

people had different roles in a stabbing like this one: “If they’re a

leader or they just a flunky, somebody that they just tell what to do

or whatever. Some of them watch for the officers. Some keep other

inmates away from whatever is fixing to go on,” and some “will give

[those involved] something clean to put on.” Months after the

stabbing, Morris identified Henry, Dewberry, and Ward for GBI

officials investigating the stabbing.

Case No. S23A0139

2. Ward contends that the evidence was not sufficient as a

matter of constitutional due process to support any of his three

6 After the stabbing, the officers “shook down” the dorm to look for

contraband. In addition to finding shanks, they found clothing that had been

thrown into mop buckets with bleach, and another pile of clothing that inmates

had tried to light on fire.

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convictions. He says the State failed to establish that he possessed

a sharp weapon, that he caused any stab wounds, that he caused

any of Wiley’s fatal stab wounds, or that he was part of a plan or

conspiracy to stab Wiley. Ward also argues that, as to the murder

counts, three defense witnesses “exonerat[ed]” him when each

testified that he was not involved,7 while only one witness (Morris)

claims to have seen Ward involved as “part of” Wiley’s stabbing. As

for Denison, he says, only Denison claims that Ward attacked him,

and Denison’s story changed constantly.

When reviewing the sufficiency of the evidence, we view the

evidence presented in the light most favorable to the verdicts to

determine whether a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt. See Jackson v.

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

(1979). In this review, we do not “weigh the evidence on appeal or

resolve conflicts in trial testimony.” Byers v. State, 311 Ga. 259, 266

7 Two inmate witnesses testified that Ward was inside the dorm during

Wiley’s stabbing, and another inmate witness simply testified that Ward was

not involved with either stabbing.

8

(2) (857 SE2d 447) (2021) (citation and punctuation omitted). And

“[t]he testimony of a single witness is generally sufficient to

establish a fact.” Carter v. State, 314 Ga. 317, 320 (2) (b) (877 SE2d

170) (2022) (citation and punctuation omitted).

Viewed in the light most favorable to the verdicts, the evidence

here was sufficient to support Ward’s convictions. For the murder

charge, the State did not need to show that Ward caused a fatal stab

wound: it was enough to prove that he was a party to the crime. See

OCGA § 16-2-20 (a) (“Every person concerned in the commission of

a crime is a party thereto and may be charged with and convicted of

commission of the crime.”). To be convicted as a party to a crime, the

defendant must have “shared a common criminal intent with the

direct perpetrators of the crime,” Coates v. State, 310 Ga. 94, 98 (849

SE2d 435) (2020), which “may be inferred from presence,

companionship, and conduct before, during and after the offense,”

Powell v. State, 307 Ga. 96, 99 (1) (834 SE2d 822) (2019) (citation

and punctuation omitted). Here, Morris clearly identified Ward as

one of the parties involved in Wiley’s stabbing, and Morris “could

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just see the ones running up and sticking [Wiley], then the main four

that stayed that’s obviously constantly sticking him.” Morris also

supplied a motive, explaining that Ward’s gang was executing the

“hit” put out on Wiley for his battery debt from Hays State Prison.

The jury could infer from Ward’s presence as one of the stabbers that

he shared a common criminal intent with the other attackers to

murder Wiley.

As for Ward’s argument that three of his witnesses

“exonerated” him, the jury was authorized to not believe the defense

witnesses’ testimony that Ward was not involved in Wiley’s

stabbing. See, e.g., Moore v. State, 314 Ga. 351, 354-355 (877 SE2d

174) (2022) (jury was entitled to discredit the defendant’s

testimony).

Similarly, although Denison’s willingness to name his

attackers waxed and waned, the jury was authorized to credit his

prior statements and cross-examination testimony naming Ward—

particularly in light of his stated fear of retaliation in prison. See

Watkins v. State, 313 Ga. 573, 576-577 (2) (872 SE2d 293) (2022)

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(explaining that the jury can consider prior inconsistent statements

as substantive evidence and reject portions of those witnesses’ trial

testimony).

Because the evidence was sufficient to support each of Ward’s

convictions, his sufficiency claim fails.

3. Ward also contends that the verdicts in this case were

“contrary to . . . the principles of justice and equity,” OCGA § 5-5-20,

and “decidedly and strongly against the weight of the evidence,”

OCGA § 5-5-21. These statutes, known as the general grounds,

require the trial court to exercise a “broad discretion to sit as a

‘thirteenth juror.’” Hinton v. State, 312 Ga. 258, 262 (1) (c) (862 SE2d

320) (2021) (citation and punctuation omitted). Ward says the

State’s evidence was weak in this case, relying heavily on the

testimony of Morris—a former inmate and member of a rival prison

faction—and Denison—a current inmate and paranoid

schizophrenic whose story changed drastically.

But as an appellate court, we do not independently review the

record as a thirteenth juror. “The decision to grant or refuse to grant

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a new trial on the general grounds is vested solely in the trial court.”

Hinton, 312 Ga. at 262 (1) (c) (citation and punctuation omitted). We

“presume, in the absence of affirmative evidence to the contrary,

that the trial court did properly exercise such discretion.” Wilson v.

State, 302 Ga. 106, 108 (II) (a) (805 SE2d 98) (2017). And here, the

trial court stated that it independently reviewed the evidence and

judged the credibility of the witnesses in favor of the State in light

of its obligations under OCGA §§ 5-5-20 and 5-5-21, and Ward offers

no basis for concluding otherwise. This claim therefore fails. See

Smith v. State, 300 Ga. 532, 534 (1) (796 SE2d 671) (2017) (holding

that the trial court did not abuse its discretion when it “recited it

had weighed the evidence, including the credibility of witnesses”).

Case No. S23A0140

4. Dewberry contends that the trial court erred by denying his

motion for directed verdict because the evidence was not sufficient

to support his convictions. When reviewing the denial of a motion

for directed verdict, “we view all of the evidence presented at trial in

the light most favorable to the verdicts and ask whether any rational

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trier of fact could have found the defendant guilty beyond a

reasonable doubt of the crimes of which he was convicted.” Holmes

v. State, 307 Ga. 441, 443 (1) (b) (836 SE2d 97) (2019) (citing

Jackson, 443 U.S. at 319 (III) (B)).

The evidence was sufficient to support Dewberry’s convictions.

The State did not need to show that Dewberry caused Wiley’s fatal

stab wound, only that he was a party to the crime. See OCGA § 16-2-20 (a); Coates, 310 Ga. at 98; Powell, 307 Ga. at 99 (1). As with

Ward, the evidence was sufficient here to show that Dewberry was

a party to the crime. He argues that being part of the same gang as

Wiley’s attackers was not enough to convict him, but evidence

beyond his gang affiliation supported the convictions, including the

testimony of two witnesses, Morris and Denison, who said he was

involved in the stabbings. And like Ward, Dewberry contends that

some inmate witnesses “exonerated” him, 8 but as we explained in

Division 2, the jury was authorized to not believe those witnesses.

8 One inmate witness testified that Dewberry was inside during Wiley’s

stabbing, and another inmate witness testified that he was not involved with

the stabbings.

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See Moore, 314 Ga. at 354-355 (explaining that the jury was

authorized to not believe the defense witnesses’ testimony). Because

the evidence was sufficient to support Dewberry’s convictions, this

claim fails.

5. Dewberry next contends that his right to a fair trial was

violated because the trial court allowed a “heavy police presence” in

the courtroom for his trial. We review for an abuse of discretion a

trial court’s decisions about the extent to which law enforcement in

the courtroom is necessary to conduct a safe and secure trial. See

Lemley v. State, 245 Ga. 350, 353 (3) (264 SE2d 881) (1980).

(a) Before the jury was brought in for voir dire, Ward’s counsel

objected to the police presence in the courtroom, noting, “[I]t looks

to be, if I counted right, 10 police officers in uniform in addition to I

believe three CERT officers in what looks like almost SWAT or riot

gear.”9 Dewberry’s counsel joined in the objection. The prosecutor

explained that the officers were “not particularly gathered over by

the Defendants. They’re throughout the courtroom.” The court

9 CERT stands for Correctional Emergency Response Team.

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overruled the objection.

The next day, Ward’s counsel again objected to the police

presence, noting that 12 officers were in the courtroom, in addition

to the CERT team. Dewberry’s counsel joined in the objection, and

added, “I don’t think it’s necessary. . . . Particularly since he’s

wearing a device that will incapacitate him should there be a

difficulty.” 10 The court “defer[red] to law enforcement only that they

provide such security as they deem appropriate under the

circumstances.” The court noted that “it’s the first time we tried

three Defendants, and two Defendants that have very substantial

[prison] disciplinary histories.” The court again overruled the

objection.

(b) Dewberry contends that the “heavy police presence” was

unwarranted, particularly when some of the officers wore “militarylike tactical gear,” because he was already wearing an electronic

shock device. Citing Holbrook v. Flynn, 475 U.S. 560 (106 SCt 1340,

10After two pretrial hearings, the trial court had authorized requiring

Dewberry and Ward to wear electronic shock devices for security reasons.

Dewberry does not challenge that requirement.

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89 LE2d 525) (1986), he says the police presence “create[d] the

impression in the minds of the jury that [Dewberry] is dangerous or

untrustworthy.” Id. at 569 (II) (B) (citation and punctuation

omitted).

Creating such an impression is a “possible” consequence of

having a security force in the courtroom “under certain conditions,”

but having identifiable security present in the courtroom is not

“inherently prejudicial.” Id. Indeed, “[a]lthough a defendant is

entitled to trial free of the partiality which the presence of an

excessive number of guards may create, special circumstances may

make the presence of a number of guards necessary.” Zant v. Gaddis,

247 Ga. 717, 718 (2) (279 SE2d 219) (1981) (considering “the nature

of the crimes” and “the surrounding circumstances” in determining

that the security measures were reasonable). See also Chancey v.

State, 256 Ga. 415, 434-435 (9) (349 SE2d 717) (1986) (holding that

the appellants complaining of a “fortress-like atmosphere” due to

law enforcement presence in the courtroom failed to show that the

security measures adopted were unreasonable).

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The trial court did not abuse its discretion in making just such

a judgment here. This trial was for murder and aggravated assault

occurring inside a prison and involving rival gangs. All three

defendants were designated maximum-security inmates, and two of

the defendants had substantial disciplinary records from prison.

And although at least two of the defendants wore electronic restraint

devices, some of the witnesses were also current inmates and rival

gang members. Under these circumstances, Dewberry has not

shown that allowing a substantial police presence throughout the

courtroom was an abuse of the trial court’s discretion. See Mohamed

v. State, 307 Ga. 89, 94 (3) (a) (834 SE2d 762) (2019) (trial counsel

did not perform deficiently for failing to object to the presence of five

to ten uniformed officers spread throughout the courtroom,

particularly when the crimes occurred in prison); Spivey v. State,

253 Ga. 187, 203-204 (12) (319 SE2d 420) (1984) (upholding trial

court’s order allowing officers in the courtroom for a murder trial

when the officers were not “forming any semicircle around [the

defendant]”); Green v. State, 246 Ga. 598, 600 (6) (272 SE2d 475)

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(1980) (upholding trial court’s decision to allow five armed deputies

in the courtroom when defendant “was a convicted murderer with a

record of escape”).

6. Dewberry contends that the trial court erred by denying his

request to remove handcuffs from James Mills, an inmate defense

witness, for his testimony while Denison—one of the State’s main

witnesses—was allowed to testify without handcuffs. He contends

that he suffered prejudice because one of his most important

witnesses had to be handcuffed and shackled during his testimony,

while one of the State’s most important witnesses was not.

Dewberry cites no authority in support of this argument nor

identifies a constitutional or statutory provision that was allegedly

violated. But even assuming this claim is not therefore abandoned

under Supreme Court Rule 22, it fails. It is “well established” that

the trial court has broad discretion to take measures necessary to

ensure a “fair and safe trial.” Weldon v. State, 297 Ga. 537, 540-541

(775 SE2d 522) (2015) (“[I]t is also as well established that the use

of extraordinary security measures to prevent dangerous or

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disruptive behavior which threatens the conduct of a fair and safe

trial is within the discretion of the trial court.” (citation and

punctuation omitted)). That discretion was permissibly exercised

here. In denying Dewberry’s request to remove Mills’s handcuffs, the

trial court explained that law enforcement advised that the inmate

witnesses “remained cuffed and shackled at all times.” The

prosecutor also noted that Mills had escaped before, and the court

added that, considering that three maximum security defendants

were in the courtroom, “I think they present a significant enough

risk that I think we’re gonna leave them shackled.” As for

Dewberry’s point that Denison testified without shackles, the

prosecutor explained that Denison had to have his handcuffs

removed because he was using the laser pointer, but his ankles

remained shackled. And the bailiff explained that their “[c]ommon

practice” was to fully restrain inmate witnesses, and that they

removed Denison’s handcuffs based on the understanding “that he

was going to be standing up [for the jury to] observ[e] his stab

wounds.” Under these circumstances, the trial court’s decision to

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leave Mills in handcuffs was within its discretion. See Kitchen v.

State, 263 Ga. 629, 629-630 (1) (436 SE2d 645) (1993) (holding that

the trial court did not abuse its discretion by trying the defendant in

restraints when he told the chief deputy that “he was going to cause

trouble”). Cf. Hill v. State, 308 Ga. 638, 646 (2) (a) (842 SE2d 853)

(2020) (holding that the trial court abused its discretion by requiring

the defendant to remain in shackles in part because the court failed

to make individualized determinations based on each defendant’s

unique security risk).

7. Finally, Dewberry contends that the rule of sequestration

was violated when the prosecutor spoke privately with Denison at

the beginning of his testimony, after Denison had “plead[ed] the

Fifth” in response to the prosecutor’s first question about where

Denison was from. Dewberry cites no authority in support of this

claim, but even assuming the claim is not abandoned under our Rule

22, it fails. The rule of sequestration prevents witnesses from

hearing the testimony of other witnesses, see OCGA § 24-6-615, but

it does not prohibit witnesses from speaking privately with the

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attorney who called them. Rather, a trial court has “discretion in

permitting, upon request, counsel for one of the parties an

opportunity to converse with a witness in the case for limited

purposes, and that discretion will not be controlled unless abused.”

Smith v. State, 244 Ga. 814, 818 (2) (262 SE2d 116) (1979). On

appeal, Dewberry does not explain how or why the trial court abused

its discretion in allowing such a conversation here at the

prosecutor’s request, except for making the conclusory assertion

that “[i]t was improper for the prosecutor to take Denison aside after

he had “plead[ed] the Fifth.” Absent any such showing, this claim

fails, too.

Judgments affirmed. All the Justices concur.

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