In the Supreme Court of Georgia

Decided: February 1, 2022

S21A1183. BRENNAN v. THE STATE.

 LAGRUA, Justice.

Appellant Erica Brennan was convicted of felony murder and 

other crimes in connection with the scalding death of her eight-yearold stepdaughter, Sarah Harris. On appeal, Appellant contends: (1) 

the trial court erred by conducting a pre-trial conference pursuant 

to Uniform Superior Court Rule (“USCR”) 33.5 (B) outside her 

presence in violation of her federal and state constitutional rights; 

(2) the trial court erred by initiating an ex parte conversation with 

the lead detective, and by failing to disclose this conversation to 

counsel; and (3) her second-chair counsel rendered ineffective 

assistance by being mentally and physically incapable of assisting 
2

in Appellant’s trial.1 For the reasons explained below, we affirm.

1. The evidence presented at trial showed the following. In July 

2007, Appellant was married to Russell Brennan. They lived 

together with Harris, who was Brennan’s daughter, as well as 

Appellant’s seven-year-old son. At the time, Brennan was a sergeant 

in the United States Army, stationed at Fort Stewart but deployed 

to Iraq. On the night of July 6, Brennan was en route home for two 

weeks of leave. 

On July 6 around 4:30 p.m., Appellant called her friend, 

Jennifer Madron, whose husband was also stationed at Fort Stewart 

 1 The crimes occurred on July 6, 2007. On January 8, 2008, a Long 

County grand jury indicted Appellant for malice murder, two counts of felony 

murder, cruelty to children in the first degree, and aggravated battery. On 

January 28, 2008, the State filed its notice of intention to seek the death 

penalty. On April 1, 2010, the State withdrew its intention to seek the death 

penalty. At a trial from April 5 to 8, 2010, the jury found Appellant not guilty 

of malice murder but guilty of the remaining counts. Appellant was sentenced 

to serve life in prison for felony murder and 20 years in prison for aggravated 

battery to be served concurrently; the remaining counts were merged for 

sentencing purposes. Appellant filed a timely motion for new trial, which was 

amended on February 20, 2019. On September 20, 2019, the trial court held an 

evidentiary hearing on the motion for new trial. After the hearing, 

supplemental briefs were filed by Appellant and the State. On April 21, 2021, 

the trial court denied Appellant’s amended motion for new trial. Appellant filed 

a timely notice of appeal, and the case was docketed to this Court’s August 

2021 term and submitted for a decision on the briefs.
3

and deployed to Iraq. According to Madron, Appellant invited 

Madron and her children to Appellant’s house to go swimming, but

Madron declined. Around 7:30 p.m., Appellant called Madron, and 

they had a 15 to 20 minute friendly, normal conversation. Ten 

minutes later, Appellant called Madron, said Harris had been 

burned, and asked for advice on how to “ease the pain.” Madron, 

assuming Harris had been sunburned while at the pool earlier that

day, recommended pouring canned milk on Harris’s burns. 

Appellant then poured canned milk on Harris. Around 8:00 p.m., 

Appellant called Madron and said Harris’s “skin was falling off.” 

During this phone call, Madron heard Harris crying in the 

background. Appellant and Madron agreed to meet in a parking lot 

at Fort Stewart.

After parking their cars, Appellant walked around to her 

passenger door, said to Madron, “Look what [Harris] did,” and

opened the passenger door. Harris was sitting in the car, 

whimpering and crying, wearing shorts and a shirt, and “[a]ll her 

skin was gone.” Madron insisted that Appellant take Harris to the 
4

hospital. Appellant disagreed and wanted to treat Harris’s burns 

herself. Madron threatened to call the military police, and Appellant 

eventually agreed to take Harris to the hospital. Madron agreed to 

pick up Appellant’s son.

While leaving Fort Stewart, Madron was pulled over by the 

military police for using her cell phone while driving. Madron 

explained the situation concerning Harris to the military police 

officer and requested the U.S. Army Criminal Investigation Division 

(“CID”) be sent to the hospital to investigate. The military police 

officer told Madron that she would make sure CID went to the 

hospital.

While Madron was picking up Appellant’s son, Appellant 

carried Harris into the emergency room of the Fort Stewart hospital. 

Hospital staff observed burns on 75 to 80% of Harris’s body; Harris 

had no burns on her face, upper chest, or knees. Harris had thirddegree burns on her feet; the burns on the rest of her body were 

between second- and third-degree burns. Harris’s burns were 

“clearly demarcated,” meaning “that they were clearly visible, not in 
5

an erratic pattern, but a clear pattern.” Harris had “stocking burns” 

on her feet meaning there was a clear line of demarcation 

demonstrating that her feet burned for longer than the rest of her 

body. Harris also had some bruising on her lower abdomen and left 

thigh; she was alert and complained about the pain she was 

experiencing. 

Appellant told a nurse that Harris had obtained the bruises 

from “roughhousing” with Appellant’s son. Appellant had directed 

Harris to take a bath, and she later found Harris lying in the water. 

Appellant stated that her husband had set the water heater at 180 

degrees, and Appellant never changed it. The nurse further testified 

that Appellant was preoccupied with who was going to pick up her 

husband from the airport that night. 

While at the hospital, Appellant met with a Georgia Division 

of Family and Children Services (“DFCS”) caseworker. Appellant 

told the caseworker that she had directed Harris to take “a hot 

shower,” and that Harris “ran her own bathwater.” Appellant also 

stated that there had been “problems gauging the temperature of 
6

the water,” and she had reported it to the landlord. Appellant 

further stated she was having problems with Harris and that “when 

[Harris] has contact with her bio[logical] mother,”2 Harris “acts out” 

by biting her nails and pulling her hair out. 

A military police officer also spoke with Appellant at the 

hospital, and he testified that he had not observed any burns on 

Appellant’s hands or arms that night. Sometime that evening, 

Harris was transported to an Augusta hospital for more specialized 

care.

Around 9:00 p.m., Appellant called Stacy McBride3 and told 

McBride that Brennan was going to kill her because Harris “had an 

accident.” Specifically, Appellant told McBride that she had directed 

Harris “to run herself a warm bath” and had “third-degree burns 

over 80 percent of her body.” During the course of the evening, 

Appellant made 10 to 12 calls to McBride. During these calls, 

 2 At trial, Harris’s biological mother testified that she was in jail on the 

night of July 6, and she did not speak with her daughter that day. 3 McBride’s husband was the commander of Sergeant Brennan’s military 

unit and was responsible for the support system involving military families.
7

Appellant: (1) informed McBride that Harris was transferred and 

asked “if it would look bad if she didn’t go” to the Augusta hospital; 

(2) requested that Brennan’s flight be rerouted to Augusta; (3) 

explained that Harris was bruised when Appellant “thr[ew] [Harris] 

in the air” while in the pool and “grabbed [Harris] by her stomach 

midsection” to prevent her from swallowing too much water; (4) 

stated that “[Harris] had overheard a conversation that [Appellant] 

was having . . . about [Harris’s] biological mother being in jail,”4

which “set [Harris] off to misbehave”; and (5) stated that Harris “had 

intentionally done this in order to ruin the rest and relaxation time 

that she was to spend with [Brennan] and that [Harris was] always 

acting out and doing things and misbehaving and this all was 

[Harris’s] fault.” 

The lead detective met with Appellant at the Fort Stewart 

hospital. Appellant told the lead detective that Harris “had gotten 

into a tub of water and had caused herself to be burned” and that 

 4 At trial, Madron testified that she and Appellant never discussed 

Harris’s biological mother during their phone calls on July 6.
8

Harris had done so because when Harris “hear[s] from or g[ets] on 

the phone with her biological mother, she would act out.” Appellant 

consented to law enforcement officers searching her house, and she 

and the lead detective agreed to meet there after Appellant retrieved 

her keys from Madron.

While at Madron’s house, Appellant stated to her that “[Harris] 

was going to ruin her [leave] with [Brennan]” and that “[Harris] 

wasn’t the angel that everybody thought she was, that she was a 

little demon child.” When Madron asked about Harris’s burns, 

Appellant stated, “[Harris] was on the phone with her mom, Christy, 

and, when she got off the phone, she was acting strange and that 

she went and ran the bathtub water and just laid in it.” 

Upon arrival at Appellant’s house, the lead detective observed 

empty containers of canned milk in the trash can, residue from the 

canned milk in the bathtub and sink, and that the water heater was 

set between 130 and 135 degrees. Appellant told the lead detective

that Harris was bruised when Appellant was “throwing [Harris] up 

and catching her” in the pool. Appellant further stated she drew 
9

Harris a bath to help alleviate the bruising, and she later found 

Harris “lying on her back” in the water. Appellant also reiterated 

her earlier statement to the lead detective that Harris “acted out 

and would bite herself and she would do this after talking with her 

real mother.”

The next day, Brennan reported the water heater to the 

landlords, who turned down the temperature on the water heater to 

an unspecified degree.5 Shortly thereafter, the lead detective and 

other law enforcement officers went to Appellant’s house to look at 

the water heater again. The lead detective turned the water heater 

back up to 130 to 135 degrees, and noted that the water flowing out 

of a faucet registered at 140 degrees. 

Harris died on July 15. According to the medical examiner, 

Harris died of thermal burns due to scalding. The medical examiner 

found no trauma or wounds other than scalding. 

After Harris’s death, Appellant was arrested. A fellow inmate 

 5 At trial, the husband-and-wife landlords testified they had not 

previously received any complaints about Appellant’s water heater.
10

testified at trial that she and Appellant spoke about this case while 

Appellant was in custody. According to the inmate, Appellant 

explained she thought “heat would take away the bruise,” and said,

“[T]he baby is dead. Oh, well.”

At trial, the medical examiner testified that Harris suffered 

immersion burns, and he explained that “[a]n immersion burn 

occurs when somebody is forced into the water, and it’s 

characterized by symmetrical burning over the area of the body as 

opposed to a splash burn . . . [like] if you walked into a shower that 

was too hot, we don’t expect to see burns on one side of the body.” He 

further explained that evidence-based practice and research says 

that “lines of clear demarcation” are consistent with submersion and 

child abuse. The nurse and doctor who treated Harris at the Fort 

Stewart hospital also testified that Harris’s burns were consistent 

with child abuse. Specifically, the doctor testified that clear lines of 

demarcation are “a very typical presentation in child abuse cases 

when somebody is held and put into the water.” 

At trial, the defense medical expert testified that Harris’s 
11

immersion burns, and the lack of splash burns on both Harris and 

Appellant, were inconsistent with the State’s theory of intentional 

child abuse because child immersion burns typically involve an 

infant or small child and “when you immerse that [type of] child, you 

can hold them . . . without . . . much defense action on the part of the 

child.” In contrast, he testified that an eight-year-old child “is going 

to put up a much harder struggle,” and, “if the child were 

intentionally placed into the water, certainly, the legs would start 

drawing up, and you’d see some movement of the legs, and then you 

would expect to see some splashing at that point in time.” 

The defense also presented a thermal engineering expert who 

testified that when Appellant’s water heater is set to 130 to 135 

degrees, the water flows out of faucets about ten degrees hotter. The 

Fort Stewart hospital doctor testified it takes 2 to 4 seconds to 

sustain second-degree burns in 130-degree water and over 5 seconds 

to sustain third-degree burns, and it would take 1.5 to 2 seconds to 

sustain third-degree burns in 150-degree water.

2. On appeal, Appellant contends that the trial court erred by 
12

conducting a pre-trial conference under USCR 33.5 (B)6 outside her 

presence in violation of her federal and state constitutional rights.

We disagree.

(a) We note first that the pre-trial conference in this case was 

not reported by a court reporter. Thus, all the evidence concerning 

the conference comes from testimony at the motion for new trial 

hearing.

Appellant’s lead counsel testified that prior to trial, the State 

and Appellant reached a tentative plea agreement whereby the 

State would withdraw its notice of intention to seek the death 

 6 Rule 33.5 (B) provides:

If a tentative plea agreement has been reached, upon request of 

the parties, the trial judge may permit the parties to disclose the 

tentative agreement and the reasons therefor in advance of the 

time for the tendering of the plea. The judge may then indicate to 

the prosecuting attorney and defense counsel whether the judge 

will likely concur in the proposed disposition if the information 

developed in the plea hearing or presented in the presentence 

report is consistent with the representations made by the parties. 

If the trial judge concurs but the final disposition differs from that 

contemplated by the plea agreement, then the judge shall state for 

the record what information in the presentence report or hearing 

contributed to the decision not to sentence in accordance with the 

plea agreement.
13

penalty and Appellant would plead guilty to voluntary 

manslaughter for a total sentence of 20 years with fewer than 20 

years to serve in prison.7 Counsel for the parties then approached 

the trial court pursuant to USCR 33.5 (B) to see if it would accept 

the tentative plea agreement. The following persons were present in 

the room for the USCR 33.5 conference: the trial judge, the District 

Attorney, and Appellant’s lead and second-chair counsel. Appellant 

was not present. 

The lead detective testified that he was informed by a sheriff’s 

deputy that the attorneys were discussing a plea agreement with 

the judge, and he walked over to the courthouse and joined the 

USCR 33.5 conference. Appellant’s lead counsel and the lead 

detective testified that after counsel for the parties presented their 

tentative plea agreement to the judge, the lead detective argued 

against the proposed agreement. The trial judge indicated that he 

 7 Appellant’s lead counsel testified that he could not remember the exact 

amount of time Appellant would have to serve in prison, but it was fewer than 

20 years, which is the maximum sentence for voluntary manslaughter. See 

OCGA § 16-5-2.
14

rejected the tentative plea agreement, although the lead detective 

testified he left the room prior to the judge announcing his decision.

(b) “Under both the federal and state Constitutions, a criminal 

defendant has a right to be present during critical stages of [her]

trial.” Allen v. State, 310 Ga. 411, 418 (5) (851 SE2d 541) (2020).8 A 

“critical stage” is “one in which a defendant’s rights may be lost, 

defenses waived, privileges claimed or waived, or one in which the 

outcome of the case is substantially affected in some other way.” Id.

(citation and punctuation omitted). 

Whether a conference under USCR 33.5 qualifies as a critical 

stage of a criminal proceeding is a matter of first impression, and an 

examination of this rule is necessary. USCR 33.5 begins by stating, 

“The trial judge should not participate in plea discussions.” USCR 

 8 Under the Georgia Constitution, “if an appellate court determines that 

the defendant’s right to be present was violated without his acquiescence or 

other waiver, prejudice is conclusively presumed and [the defendant’s]

convictions must be reversed.” Champ v. State, 310 Ga. 832, 845 (2) (c) (854 

SE2d 706) (2021). “Georgia law is unusual in applying this conclusive 

presumption of prejudice for an unwaived violation of a constitutional right to 

be present. The United States Supreme Court has held that a violation of the 

right to be present under the United States Constitution is subject to 

constitutional harmless error review.” Id. at n.10.
15

33.5 (A). This prohibition exists because a trial judge’s “participation 

in the plea negotiation may skew the defendant’s decision-making 

and render the plea involuntary.” McDaniel v. State, 271 Ga. 552, 

554 (2) (522 SE2d 648) (1999).

USCR 33.5 (B) then explains what parties may do when “a 

tentative plea agreement has been reached.” Specifically, parties 

may request disclosure of the tentative plea agreement to the judge, 

and the judge “may permit the parties to disclose the tentative

agreement and the reasons therefor in advance of the time for the 

tendering of the plea.” USCR 33.5 (B). Thus, the rule anticipates this 

disclosure will occur prior to the formal tendering of a guilty plea. 

See Undisclosed LLC v. State, 302 Ga. 418, 420 (2) (a) (807 SE2d 

393) (2017) (construing court rules according to their plain and 

ordinary meaning). And, here, when Appellant’s lead counsel was 

questioned on whether a court reporter was present for the pre-trial 

conference, he testified, “No, I don’t believe there was a court 

reporter in there. Again, we were just doing the informal, under the 

uniform superior court rules, having the plea conference.” Notably, 
16

the rule does not dictate the form of this disclosure (e.g., in-person, 

by remote videoconference, by filing or other written correspondence

to the court, or some other method). After a disclosure by the parties, 

“[t]he judge may then indicate to the prosecuting attorney and

defense counsel whether the judge will likely concur in the proposed

disposition if the information developed in the plea hearing or

presented in the presentence report is consistent with the

representations made by the parties.” USCR 33.5 (B) (emphasis 

supplied). Again, the rule anticipates that the parties’ disclosure to 

the judge will occur prior to the formal tendering of the guilty plea. 

And, at the formal tendering of the guilty plea, when the defendant 

unquestionably must be present, information or evidence may be 

presented which is different than that which was disclosed by the 

parties. We note that under this rule a judge is not required to 

provide the parties with an indication of the likelihood that he or she

will accept a tentative plea agreement. See Carr v. State, 301 Ga. 

128, 130 (3) (799 SE2d 175) (2017) (“Nor was the trial court required 

to provide the parties with an indication of the likelihood that—after 
17

a plea hearing—it would look favorably upon a certain proposed 

sentence.”).

The remainder of USCR 33.5 then provides as follows.

(B) . . . If the trial judge concurs but the final disposition 

differs from that contemplated by the plea agreement,

then the judge shall state for the record what information

in the presentence report or hearing contributed to the

decision not to sentence in accordance with the plea

agreement.

(C) When a plea of guilty or nolo contendere is tendered

or received as a result of a plea agreement, the trial judge

should give the agreement due consideration, but

notwithstanding its existence, must reach an

independent decision on whether to grant charge or

sentence leniency under the principles set forth in [USCR

33.6].

Thus, USCR 33.5 merely provides that parties may or may not 

disclose a tentative plea agreement to the trial judge, and the judge 

may or may not indicate whether he or she “will likely concur in the

proposed disposition if the information developed in the plea hearing

or presented in the presentence report is consistent with the

representations made by the parties.” Moreover, even if the trial 

judge does indicate that he or she will likely concur in the tentative 
18

plea agreement, the judge can still depart from that determination 

as long as the judge explains his or her reasons based on information 

provided prior to or at the plea hearing. Here, the trial judge 

indicated that he rejected the tentative plea agreement

After the judge offers his or her indication or declines to 

indicate, the defendant still has a choice on whether to tender a 

guilty plea. If he or she chooses to enter a guilty plea, USCR 33.5 

contemplates the formal tendering of a guilty plea at which the 

defendant will be present. And USCR 33.6 through 33.12 govern the 

formal tendering of a guilty plea as well as any withdrawal of the 

plea.9 It is USCR 33.10 that governs a trial court’s formal rejection 

of a proposed plea agreement:

If the trial court intends to reject the plea agreement, the

trial court shall, on the record, inform the defendant

personally that (1) the trial court is not bound by any plea

agreement; (2) the trial court intends to reject the plea

agreement presently before it; (3) the disposition of the

present case may be less favorable to the defendant than

that contemplated by the plea agreement; and (4) that the

defendant may then withdraw his or her guilty plea as a 

matter of right. If the plea is not then withdrawn, 

sentence may be pronounced.

 9 This is in addition to the relevant statutes and case law.
19

An indication by the trial court, under USCR 33.5 (B), that it “will 

[not] likely concur” with the parties’ tentative plea agreement at the 

formal tendering of a guilty plea is separate from USCR 33.10 

because the trial court is not formally rejecting the tentative plea 

agreement. Thus, it is clear that at the USCR 33.5 conference, the 

trial judge is merely providing an indication as to what may occur 

at a formal tendering of the guilty plea, provided that “the 

information developed in the plea hearing or presented in the

presentence report is consistent with the representations made by

the parties.” USCR 33.5 (B). Put simply, a USCR 33.5 conference 

gives the parties a preview of how the trial judge may likely rule at 

a separate, subsequent USCR 33.10 formal guilty plea hearing at 

which the defendant is required to be present.

Moreover, there is nothing in the court rules, relevant statutes, 

or case law prohibiting a defendant from tendering a guilty plea 

even after the trial judge provides his or her initial indication 

concerning the parties’ tentative plea agreement. In fact, the 
20

evidence in this case shows that the parties disclosed a second 

tentative plea agreement to the trial judge in this case.10 And, there 

is nothing prohibiting a defendant from presenting evidence at the 

formal tendering of the guilty plea which is different from, or in 

addition to, that which was presented in the parties’ initial 

disclosure. USCR 33.5 (B) specifically contemplates “information 

developed at the plea hearing.”

Accordingly, we conclude that disclosure of a tentative plea 

agreement at a conference under USCR 33.5 is not a critical stage 

for the following reasons: (1) a defendant’s rights cannot be lost

because a defendant has no right to enter a guilty plea11; (2) a 

defendant’s defenses or privileges cannot be waived because there is 

 10 The details of the second tentative plea agreement were that Appellant 

would plead guilty to voluntary manslaughter and receive 20 years in prison. 

Appellant’s lead counsel testified that at this second disclosure the trial judge 

stated: “[T]here is no set of facts you can tell me that’s going to make out a case 

for voluntary manslaughter. I’m not going to accept it. The jury is going to have 

to do that. I’m not taking this plea, period.” Appellant raises no enumeration 

of error concerning this second disclosure of a tentative plea agreement.

11 See Carr, 301 Ga. at 130 (3) (defendants have no right to enter a guilty 

plea). Additionally, as noted earlier, there is nothing prohibiting a defendant 

from formally tendering a guilty plea after a trial judge provides his or her 

indication to the parties.
21

no impact on a defendant’s opportunity to defend against the 

charges12; and (3) the outcome of the case cannot substantially 

affected in some other way because (a) a defendant still retains the 

option to formally tender a guilty plea, and (b) a defendant can still 

proceed to trial and raise any and all permissible defenses and 

privileges during trial. See Kesterson v. Jarrett, 291 Ga. 380, 384 (2) 

(a) n.1 (728 SE2d 557) (2012) (“[T]he exclusion of a party from 

proceedings with the jury at trial . . . is at the core of the right to be 

present.”). We therefore conclude that a disclosure of a tentative plea 

agreement by counsel for the parties under USCR 33.5 is a not a 

critical stage for which a defendant has the right to be present under 

the United States Constitution or the Georgia Constitution.

3. Appellant next contends that the trial court erred by 

initiating an ex parte conversation with the lead detective and by 

 12 We note that a defendant waives certain defenses and privileges by 

formally entering a guilty plea, but no defenses or privileges are waived by

disclosing a tentative plea agreement to a trial judge. See OCGA § 24-4-410 (3) 

and (4) (concerning the inadmissibility of any statements “made in the course 

of plea discussions” and “made in the course of any proceedings in which a 

guilty plea . . . was entered and was later withdrawn . . .”).
22

failing to disclose this conversation to counsel. Appellant further 

contends that, had the trial court disclosed this conversation to 

counsel, “it would have resulted in recusal of the trial judge from 

conducting Appellant’s trial.”13 For the reasons explained below, this 

claim fails.

Regarding the ex parte conversation that the trial judge 

initiated with the lead detective, the lead detective testified at the 

motion for new trial hearing as follows:

The day of the trial, [I] got into the courtroom, Frankie 

Milton, who was the clerk of the court at the time, says, 

“Judge Cavender wants to see you.” I said, “Okay.”

So I went in and saw Judge Cavender, and I says, “You 

wanted to see me, Your Honor?” He said, “Yes, sir.” He 

said, “I just wanted you to know I was a bad guy today.” 

And I said, “I don’t understand what you’re saying.” He 

said, “Well, they wanted to plead her for 20, and I told 

them we had a jury.” That’s what Judge Cavender said to 

me.

The lead detective further testified that this conversation happened 

in chambers, and no one else was present.

 13 Appellant does not contend that the trial judge erred by failing to 

voluntarily disqualify himself.
23

Former Canon 3 (B) (7) (now Rule 2.9 (A)) of the Georgia Code 

of Judicial Conduct14 and USCR 4.115 prohibit judges from initiating 

certain ex parte communications.16 While we are troubled by the 

judge’s initiation of an ex parte communication with the lead 

detective, we conclude that there is no basis for the grant of a new 

trial because Appellant has not shown prejudice regarding either 

 14 Former Canon 3 (B) (7), in effect at the time of trial, read, “Judges 

shall not initiate or consider ex parte communications, or consider other 

communications made to them outside the presence of the parties concerning 

a pending or impending proceeding, except [under limited circumstances not 

applicable here].”

15 “Except as authorized by law or by rule, judges shall neither initiate 

nor consider ex parte communications by interested parties or their attorneys 

concerning a pending or impending proceeding.”

16 We note that:

With certain exceptions, [former] Canon 3 (B) (7) [now Rule 2.9 (A)] 

forbids a judge to initiate or consider an ex parte communication, 

but [former] Canon 3 (B) (7) [now Rule 2.9 (A)] says nothing about 

disqualification. When a judge has taken part in an ex parte 

communication in violation of [former] Canon 3 (B) (7) [now Rule 

2.9 (A)], whether the violation requires the disqualification of the 

judge must be assessed under [former] Canon 3 (E) [now Rule 

2.11].

State v. Hargis, 294 Ga. 818, 822, n.10 (1) (756 SE2d 529) (2014). Former 

Canon 3 (E) (1) (a), in effect at the time of trial, read, “Judges shall disqualify 

themselves in any proceeding in which their impartiality might reasonably be 

questioned, including but not limited to instances where: . . . the judge has a 

personal bias or prejudice concerning a party[.]” The commentary to this rule 

provided, “Judges should disclose on the record information that the court 

believes the parties or their lawyers might consider relevant to the question of 

disqualification, even if they believe there is no legal basis for disqualification.”
24

the initiation of the ex parte communication, or the failure to 

disclose it. See, e.g., Fuller v. Fuller, 279 Ga. 805, 806 (1) (621 SE2d 

419) (2005) (affirming the trial court’s order because “even if [the 

judge’s] communications [with the plaintiff’s counsel] were 

prohibited due to their ex parte nature, they did not harm [the 

defendant]”); Crowe v. State, 265 Ga. 582, 585 (2) (458 SE2d 799) 

(1995) (holding that the defendant “has not shown that he was in 

any way prejudiced by” the trial judge’s failure to immediately 

disclose his ex parte communications with the defendant to counsel); 

Ivey v. Ivey, 264 Ga. 435, 438 (3) (445 SE2d 258) (1994) (holding “no 

harmful error” where there was “no indication in the record that the 

trial court gave any consideration to the ex parte communications” 

that it received).

When the judge initiated the ex parte conversation with the 

lead detective, he merely informed the lead detective of his decision 

to not accept the parties’ negotiated plea agreement, and the parties 

had already been informed of this decision. See Fuller, 279 Ga. at 

806 (1) (any error in the trial court’s initiation of an ex parte 
25

communication with counsel was determined to be harmless, in 

part, because the trial court had already made its decision); Crowe, 

265 Ga. at 585 (2) (any error in the timing of the trial court’s 

disclosure of an ex parte communication was determined to be 

harmless because the defendant had not shown he was prejudiced 

by the timing). Further, Appellant has not shown that the judge’s 

disclosure of this conversation would have resulted in recusal. See 

Ford v. Tate, 307 Ga. 383, 422 (II) (E) (835 SE2d 198) (2019) 

(speculation is insufficient to show that the trial judge was biased or 

that his impartiality could reasonably be questioned). Accordingly, 

we conclude Appellant has failed to show the required prejudice, and 

therefore, this claim fails.

4. Appellant next contends her second-chair counsel rendered 

constitutionally ineffective assistance by being mentally and 

physically incapable of assisting in Appellant’s trial. We disagree.

(a) At trial, Appellant was represented by three attorneys: (1) 

Gerald Word, then-Director of the Office of the Georgia Capital 

Defender, as lead counsel; (2) Charles Nester, as second-chair 
26

counsel; and (3) Sharon Schiavetti, as third-chair counsel. Word 

conducted voir dire; he presented the opening statement and closing 

argument; he conducted cross-examination of all the State’s 

witnesses; he moved for a directed verdict of acquittal; he conducted 

direct examination of the landlords and the defense medical expert 

who testified about Harris’s burns; and he voiced nearly all of the 

defense objections. While Nester conducted the direct examination

of the defense engineering expert, Word conducted the re-direct 

examination of him. Schiavetti conducted the direct examination of 

the military police officer who testified he did not observe burns on 

Appellant’s hands and arms.

At the motion for new trial hearing, Word, Schiavetti, and the 

defense investigator testified that Nester would fall asleep during 

trial. Word also testified that they “were having issues with [Nester] 

prior to trial with just some cognitive issues that were difficult to 

define at the time,” and “[t]here were complaints that started 

originating prior to trial.” Ultimately, Nester was fired from the 

Capital Defender’s Office sometime after Appellant’s trial. Nester’s 
27

wife testified at the motion for new trial hearing that Nester’s 

cognitive decline began “around 2011, maybe somewhere around 

there.”

While Appellant fails to identify any specific deficiencies in 

Nester’s performance at trial, she does refer to Nester’s “disjointed 

examination” of the defense engineering expert. At trial, Nester 

presented the defense engineering expert, qualified him as an expert 

in the field of thermal engineering, and established that he had 

examined Appellant’s water heater. After Nester questioned the 

defense engineering expert about the basics of the water heater, the 

following colloquy occurred. 

[PROSECUTOR]: Your Honor, may I—just by way of 

suggestion rather than objection, could we—if I have 

any questions on these—on one of them—and there 

may not be that many—but we agreed to let me do the 

cross[-examination] right then rather than having to 

put [the pictures] back up.

MR. WORD: That’s fine with me if it’s—

[PROSECUTOR]: Is it all right with the judge?

THE COURT: That’ll be fine.

MR. NESTER: That’s fine with me, Your Honor.

The prosecutor then cross-examined the defense engineering 
28

expert on the basics of the water heater. When the prosecutor 

finished, Nester restarted his direct examination. Whenever the 

defense engineering expert testified about a specific component or 

condition of the water heater on direct examination (e.g., control 

power transformer, temperature recording device, the thermostat 

and its clips, corrosion product, the temperature relief valve, and 

access cover), Nester would conduct the direct examination on that 

component followed by the prosecutor’s cross-examination of that 

component.17

Nester elicited testimony from the defense engineering expert 

that when Appellant’s water heater’s thermostat was set to 130 

degrees, and the access cover was removed, the water immediately 

flowing from the water heater registered at 168 degrees.18 The State 

then elicited testimony from the defense engineering expert that 

when the water heater’s thermostat was set to 130 to 135 degrees, 

 17 There were times the prosecutor had no questions about the various 

components of the water heater.

18 A photograph taken by law enforcement officers on the night of July 6 

shows that the water heater’s access cover was removed.
29

and the access cover remained intact, the water flowing from the 

water heater only registered 10 degrees hotter. After Nester finished 

his direct examination, the prosecutor had no further questions, and 

the trial recessed for lunch. After the recess,19 Word recalled the 

defense engineering expert, and elicited testimony from him that 

when the water heater at Appellant’s home was set to 130 to 135 

degrees, and the access cover was removed, the water flowing the 

bathtub faucet registers at 163 to 165 degrees; this 3 to 5 degree

drop in temperature results from the 30 foot distance from the water 

heater to the bathtub faucet.

In rebuttal, the State called one of the law enforcement officers

who reported to Appellant’s house on the night Harris was burned. 

This officer testified that the access cover was on the water heater 

when he and the lead detective initially looked at it, but they 

removed the access cover in order to look at the thermostat.

(b) To prevail on her ineffective assistance of counsel claim, 

 19 At the motion for new trial hearing, Word testified that “it appear[ed] 

[Nester] was doing a very poor job of handling the witness; and at a break, 

when we came back in, I took it over.”
30

Appellant must demonstrate that Nester’s performance was 

professionally deficient and that she was prejudiced by his deficient 

performance. See Sullivan v. State, 308 Ga. 508, 510 (2) (842 SE2d 

5) (2020) (citing Strickland v. Washington, 466 U.S. 668, 687 (III) 

(104 SCt 2052, 80 LE2d 674) (1984)). To establish deficient 

performance, Appellant must show that Nester performed his duties 

in an objectively unreasonable way, considering all the 

circumstances and in the light of prevailing professional norms. See 

id. To establish prejudice, Appellant must prove that there is a 

reasonable probability that, but for Nester’s deficiency, the result of 

the trial would have been different. See id. “A reasonable probability 

is a probability sufficient to undermine confidence in the outcome.” 

Id. (citation omitted). And this burden is a heavy one. See Keller v. 

State, 308 Ga. 492, 496 (2) (842 SE2d 22) (2020). “If an appellant 

fails to meet his or her burden of proving either prong of the 

Strickland test, the reviewing court does not have to examine the 

other prong.” Sullivan, 308 Ga. at 510 (2) (citation omitted).

Assuming without deciding that Nester’s performance was 
31

deficient, we turn to whether Appellant has demonstrated prejudice, 

and we conclude that she has not. Appellant argues that, “but for 

[Nester’s] impairment and his disjointed examination of a key 

witness, there is a reasonable probability that the outcome of her 

trial would have been different.” However, Appellant fails to point 

to any specific testimony that Nester failed to elicit from the defense 

engineering expert or to any problematic testimony that Nester 

elicited from him. “[M]ere speculation on [Appellant’s] part is 

insufficient to establish Strickland prejudice.” Henderson v. State, 

310 Ga. 231, 242 (3) (a) (850 SE2d 152) (2020) (citation omitted).

And, to the extent Nester’s direct-examination of the defense 

engineering expert was “disjointed,” this was remedied by 

Appellant’s lead counsel conducting a re-direct examination of the 

defense engineering expert. We therefore conclude that Appellant 

failed to show prejudice under Strickland. See id. (“Strickland 

places a heavy burden on [Appellant] to affirmatively prove 

prejudice through evidence of a reasonable probability of a different 

result.” (citation and punctuation omitted)). Thus, this ineffective 
32

assistance claim fails.

Judgment affirmed. All the Justices concur.