Jesse Michael Masters v. State

SECOND DIVISION DOYLE, P. J., DAVIS and WHITAKER, JJ. NOTICE: Motions for reconsideration must be received no later than 4:30 pm on the 10th day after the decision was issued to be deemed timely filed. https://www.gaappeals.gov/rules October 26, 2026 In the Court of Appeals of Georgia A26A0869. MASTERS v. THE STATE. DAVIS, Judge. This appeal concerns issues about the attorney-client relationship after Thayler Kolbo, a former attorney for the Barrow County Public Defender’s Office, testified against Jesse Michael Masters at Masters’ criminal trial. Masters was found guilty of trafficking in cocaine, possession of oxycodone, and possession of benzodiazepine, and on appeal, he argues that (1) Kolbo labored under an actual conflict of interest; (2) Kolbo rendered ineffective assistance of counsel because he misrepresented himself as his attorney, collected evidence against him, and testified on behalf of the State; (3) the trial court erred by allowing Kolbo to testify during trial; and (4) the cumulative effect of the errors requires a new trial. After a careful consideration and review of the record and the relevant law, we affirm Masters’ conviction, sentence, and the denial of his motion for new trial. The record in this case shows the following. On September 23, 2021, Officer Jeff Scott of the City of Auburn Police Department was on patrol on Apalachee Church Road when he noticed a gray Honda Accord make a right turn and travel in the opposite lane of traffic. Officer Scott followed the vehicle and observed it cross over the double yellow and solid white line several times. Officer Scott then initiated a traffic stop of the vehicle and made contact with the driver, who was later identified as Christopher Green. Officer Scott also identified Masters, who was seated in the front passenger seat, and April Stake, who was seated in the rear passenger seat. As Officer Scott spoke with Green, he noticed that Green was “extremely talkative,” appeared “fairly nervous,” and that none of the occupants could give a definitive answer as to where they were going. Officer Scott asked Green to exit the vehicle and asked him if there was “anything illegal in the vehicle,” to which Green replied, “not mine.” Officer Scott ultimately searched the vehicle and found two bags of a “crystalized substance” in the center console, which Officer Scott suspected was methamphetamine, scales with white residue, and a large quantity of what appeared 2 to be cocaine inside of a camouflage bag in the rear passenger area of the vehicle.1 He also found additional methamphetamine, pills which appeared to be xanax, amphetamine salts, oxycodone, and heroin in the backseat of the vehicle.2 Officer Scott ultimately arrested Masters, Green, and Stake, and they were indicted collectively on one count of trafficking in cocaine (OCGA § 16-13-31(a)), one count of possession of a schedule I controlled substance (heroin) (OCGA § 16-13-30(a)), one count of possession of a schedule II non-narcotic controlled substance (methamphetamine) (OCGA § 16-13-30(a)), one count of possession of a schedule II controlled substance (oxycodone) (OCGA § 16-13-30(a)), and two counts of possession of a schedule IV controlled substance (benzodiazepine) (OCGA § 16-13- 30(a)).3 1 A forensic expert confirmed that the substance was cocaine and weighed 55.438 grams. 2 A forensic expert testified that the narcotics were alprazolam, oxycodone, and benzodiazepine. Photographs of the narcotics were entered into evidence and published for the jury. Additionally, footage of the traffic stop from Officer Scott’s body cam was entered into evidence and played for the jury. 3 Green was also charged with failure to maintain lane (OCGA § 40-6-48). The State later nolle prossed Count 2 (possession of a schedule I controlled substance (heroin), Count 3 (possession of methamphetamine), and Count 6 (possession of a schedule IV controlled substance (benzodiazepine)). 3  At the time of the arrest, Kolbo worked as an assistant public defender for the Barrow County Public Defender’s Office.4 According to Kolbo, to receive indigent counsel, prospective clients first complete an application which is reviewed by the public defender’s office. The application asks potential clients if they are aware of any co-defendants in their cases, and sometimes the applicants would list who was arrested with them. Typically, the public defender’s office tries to keep the clients who have multiple cases. In cases involving a potential conflict of interest, an internal office form would be completed and given to the chief public defender or head administrator who would then send the form to “whoever.” Kolbo acknowledged that during this process, it was possible for him to be listed as the attorney of record for multiple co-defendants while conflict counsel was being arranged. Once conflict counsel was obtained, the practice was for the conflict counsel to file a substitution of counsel form. Kolbo testified that he “was not involved with the day-to-day” filing of entry of appearances and that he would not personally file them, but a member of the support staff had his permission to file entry of appearances on his behalf. 4 Kolbo later left the office in November 2022. 4  Following their arrest, Masters, Green, and Stake applied for indigent counsel through the Barrow County Public Defender’s Office. On October 8, 2021, notices of appearance were filed in Masters’ case and in Green’s case, which listed Kolbo as the attorney of record in both cases. Shortly thereafter, on October 20, 2021, a notice of appearance which listed Kolbo as the attorney of record was filed in Green’s violation of probation case.5 According to Kolbo, Green’s violation case was based on “technical” violations and the new offenses in the instant case. Kolbo spoke with Green first because of the probation violation, and he ultimately chose to keep Green as his client. Kolbo went to the Barrow County Jail on November 15, 2021, to serve Masters with a subpoena to testify in Green’s violation of probation case. Kolbo was unaware that an entry of appearance had been filed in Masters’ case which listed him as Masters’ attorney of record, but Kolbo requested conflict counsel to be appointed for Masters and Stake before the meeting. Kolbo spoke with Masters and informed him that he represented Green and that the purpose of his visit was to serve him with a subpoena for Green’s violation of probation case. According to Kolbo, Masters stated that he was aware that Kolbo was not his attorney. During the meeting, Masters 5 A different attorney represented Green at trial for the offenses in this case. 5 claimed ownership of the drugs and said that Green did not know that the drugs were in the vehicle. Masters also told Kolbo that Stake had no knowledge of the drugs in the vehicle. Kolbo did not meet with Masters at any time other than the November 15, 2021 meeting, he did not appear in court on Masters’ behalf, and he did not take any other action to represent Masters in the instant case. Kolbo also testified that he did not consider himself to be Masters’ attorney at the time of his meeting with Masters. On November 22, 2021, the Georgia Public Defender Council (“GPDC”) contacted Leslie Jones, the owner of a private law firm and a contract attorney with the GPDC, and asked if she would “accept a [d]rug case” with co-defendants. Jones agreed, and she entered a notice of appearance on Masters’ behalf on December 2, 2021. The State later added Kolbo as one of its witnesses and served Jones with notes taken by Kolbo during his meeting with Masters. Jones subsequently filed a motion in limine to prohibit Kolbo’s testimony, arguing that Kolbo’s testimony should be excluded because it would be cumulative of other evidence to be presented at trial and would be substantially more prejudicial than probative under OCGA § 24-4-403. The trial court denied the motion, concluding that there was no basis to exclude the 6 testimony because Kolbo was not Masters’ attorney, and thus the attorney-client privilege did not apply. The case proceeded to a joint jury trial with all three defendants. Kolbo did not represent any of the defendants at trial. Masters was represented by Jones at trial, and Green and Stake each had their own attorney. At trial, Kolbo was called by the State and testified about his November 2021 meeting with Masters. Kolbo testified that he represented Green at the time, and he met with Masters to serve him with a subpoena for Green’s case. He testified that he first informed Masters that he was Green’s counsel and that he did not represent Masters. Masters then made “a variety of statements” that the drugs in the car belonged to him and that Green and Stake had no knowledge that drugs were in the vehicle. According to Kolbo, Masters said that Green “didn’t do shit, that was [his] shit[,]” and that he lied to Green and told him that he “didn’t have nothing.” Masters told Kolbo that he knew he was incriminating himself, the drugs belonged to him, and that Green was innocent. The State also presented testimony from Barrow County Magistrate Judge Gregg Teatino, who presided over Masters’ first appearance hearing. Judge Teatino testified that during the hearing, he first advised Masters of his right to remain silent and that anything 7 Masters said could be used against him. Despite Judge Teatino’s warning, Masters “blurted out” that “the drugs were his and not the two other people.” Judge Teatino again advised Masters not to discuss the facts of the case, but Masters said “numerous times” that the drugs were his, and he “kept trying to take the charges for the other two people.” Additionally, the State presented evidence of jails calls made by Masters following his arrest in which he claimed ownership of the drugs. After the trial, the jury found Masters guilty of trafficking in cocaine, possession of oxycodone, and possession of benzodiazepine, and the trial court imposed a 33-year sentence, with the first 15 years to be served in confinement and the remainder to be served on probation.6 Masters subsequently filed a motion for new trial, arguing that the trial court erred by denying his motion to exclude Kolbo’s testimony. Specifically, Masters argued that Kolbo was ineffective because he labored under an actual conflict of interest and that the trial court erred by denying his motion in limine to exclude Kolbo’s trial testimony on that basis. Following a hearing, the trial court denied Masters’ motion for new trial. The trial court first determined that Kolbo was not ineffective because he never acted as Masters’ counsel, and thus no attorney-client 6 The trial court also imposed a $200,000 fine. 8 relationship had formed between them. The court further determined that because Masters was “effectively unrepresented” and that no attorney-client relationship existed, Masters could not show that Kolbo had a conflict of interest. Additionally, the trial court concluded that although Masters did not raise the issue of Kolbo’s prior representation in the motion in limine, Kolbo’s trial testimony was still admissible because no attorney-client relationship existed when Kolbo met with Masters and that, even if an attorney-client relationship existed, the attorney-client privilege did not apply because Masters’ actions demonstrated that he did not intend for his communications to remain confidential. This appeal followed. 1. First, Masters argues that the trial court erred in its determinations that no attorney-client relationship existed with Kolbo and that Kolbo did not labor under an actual conflict of interest. This claim fails. In reviewing a trial court’s ruling on a conflict-of-interest claim, we owe no deference to its application of the law to the facts of [the] case. We owe substantial deference, however, to the way in which the trial court assessed the credibility of witnesses and found the relevant facts. To that end, we must accept the factual findings of the trial court unless they are clearly erroneous, and we must view the evidentiary 9  record in the light most favorable to the findings and judgment of the trial court. Adams v. State, 317 Ga. 342, 352(2) (893 SE2d 85) (2023). It is well settled that [o]ne component of the right to the effective assistance of counsel is the right to representation that is free of actual conflicts of interest. In evaluating a criminal defendant’s claim that a conflict of interest worked a denial of the effective assistance of counsel, [Georgia courts] ha[ve] consistently applied the framework from Cuyler[7] and required the defendant to show that an actual conflict of interest adversely affected his lawyer’s performance. Gibson v. Head, 324 Ga. 85, 90(2) (927 SE2d 279) (2026). And as we have previously explained,”an actual conflict of interest means a conflict that affected counsel’s performance — as opposed to a mere theoretical division of loyalties.” White v. State, 298 Ga. 416, 418(2) (782 SE2d 280) (2016) (citation modified). “[T]he critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings.” White v. State, 365 Ga. App. 101, 106(2) (877 SE2d 649) (2022) (citation modified). “[P]rejudice is presumed if the 7 Cuyler v. Sullivan, 446 US 335 (100 SCt 1708, 64 LE2d 333) (1980). 10 defendant demonstrates that the conflict of interest existed and that it significantly affected counsel’s performance.” Moss v. State, 312 Ga. 202, 206(2)(a) (862 SE2d 309) (2021) (citation modified). Critically, however, “the concurrent representation of co-defendants is not a per se violation of constitutional guarantees of effective assistance of counsel.” Tolbert v. State, 298 Ga. 147, 148(2)(a) (780 SE2d 298) (2015) (citation modified). Indeed, “[t]he premise of a defendant’s claim that he was denied conflict-free assistance because of joint representation must be that his lawyer would have done something differently if there was no conflict.” Adams, 317 Ga. at 352(2) (emphasis supplied). Although somewhat factually dissimilar, we find that the Eleventh Circuit’s decision in Ochoa v. United States, 45 F4th 1293 (11th Cir. 2022), is instructive. There, Ochoa and 31 co-defendants were arrested and charged with drug trafficking offenses. Id. at 1296(I). Ochoa retained a number of attorneys following his arrest, including Joaquin Perez. Id.8 Around the same time, Perez also represented another individual who was not charged with Ochoa but who aided the government in its investigation of Ochoa’s crimes. Id. at 1297(I). Perez met with Ochoa and suggested the possibility 8 The Court noted that the record was unclear as to when Perez’s representation of Ochoa ended. Ochoa, 45 F4th at 1296(I). 11 of a global plea deal and allegedly tried to convince Ochoa to pay a $30 million “bribe or kickback” and cooperate with the government. Id. at 1296–97(I). Ochoa subsequently retained additional lawyers and was ultimately convicted following a trial. Id. at 1297(I). Ochoa later filed a motion to vacate his convictions and sentence, arguing that Perez was ineffective because he labored under actual conflict of interest due to his dual representation of the other individual who was not charged with the crimes. Ochoa, 45 F4th at 1297(I). Specifically, Ochoa argued that he was entitled to a new trial because Perez’s conflict of interest prevented him from pursuing a plea agreement and that Perez delayed negotiations to aid the other uncharged individual. Id. at 1298(II). In affirming the district court’s denial of Ochoa’s motion, the Eleventh Circuit reasoned that “[t]he Sixth Amendment ensures the right to effective assistance of an attorney.” Id. at 1299(III)(A) (quotation marks omitted; emphasis within the original). “That is, the Sixth Amendment confers an affirmative right (the right to effective assistance of counsel at critical proceedings), not a negative right (the right to be completely free from ineffective assistance).” Id. The Court further reasoned that “an attorney’s conflict does not necessarily violate the Sixth 12 Amendment if the defendant also receives the assistance of conflict-free counsel.” In applying those principles to Ochoa’s case, the Court concluded that Ochoa’s conflict of interest claim failed because Ochoa was represented by other attorneys at trial and because Ochoa did not allege that those attorneys also had conflicts or that they were ineffective in their representation at trial. Id. at 1296, 1299–1300(III)(A). Here, only Jones represented Masters at trial, and Masters does not allege that Jones was ineffective, nor does he allege that Jones had any conflicts of interest. Moreover, Masters does not allege that Kolbo’s actions prevented Jones from raising a defense or that Jones was constrained from cross-examining any of the State’s witnesses.9 And importantly, Masters does not allege what Jones could have been done differently in his case. Instead, Masters solely relies upon Kolbo’s actions of filing a notice of appearance in his case and Green’s case to support his claim that Kolbo labored under an actual conflict of interest. But pretermitting whether an attorney- client relationship actually existed between Kolbo and Masters,10 as stated above, the 9 And we note that Jones cross-examined Kolbo during trial about his bias towards Green and his choice to visit Masters at the jail instead of using other methods to serve Masters with the subpoena for Green’s violation of probation case. 10 Although we decline to decide whether an attorney-client relationship existed between Kolbo and Masters, we take this opportunity to briefly address the concerns 13 conflict of interest jurisprudence requires Masters to show a conflict of interest that we have about the administrative actions which led to the filing of a notice of appearance in this matter. As stated above, a notice of appearance was filed in Masters’ case, which listed Kolbo as the attorney of record. See Uniform Superior Court Rule 30.2 (“Upon arraignment, the attorney, if any, who announces for or on behalf of an accused, or who is entered as counsel of record, shall represent the accused in that case throughout the trial, unless other counsel and the defendant notify the judge prior to trial that such other counsel represents the accused and is ready to proceed, or counsel is otherwise relieved by the judge.”) (emphasis supplied). Although the State in its brief emphasizes that Kolbo was unaware that an entry of appearance had been filed in Masters’ case, we note that Kolbo specifically testified that he gave his support staff permission to “sign and file” entries of appearance on his behalf and there is no evidence whatsoever in the record to suggest that the notice of appearance was filed by mistake in Masters’ case. We remind the parties of the obligation and responsibility to supervise nonlawyers and other support personnel when legal matters, such as the filing of a notice of appearance, are delegated to support staff. See David C. Joel, Attorney at Law, P. C. v. Chastain, 254 Ga. App. 592, 596(1) (562 SE2d 746) (2002) (“Although attorneys generally employ nonattorneys such as secretaries, investigators, and other paraprofessionals to assist them in providing legal services to clients, they act for the attorney and must be adequately trained and supervised to ensure that the attorney’s legal and ethical duties to clients are not compromised.” (emphasis supplied); see also Georgia Rules of Professional Conduct Rule 5.3(b) found in Bar Rule 4-102(d) (“[A] lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer[.]”). This is especially so here, because the filing of a notice of appearance carries an implicit representation that the lawyer has both authorized the appearance and is aware of it. While we are mindful that public defender offices carry heavy caseloads and are tasked by statute with various deadlines related to their appointment as counsel for indigent defendants, it is incumbent on public defender offices to have an administrative process that comports with Georgia law and maintains the attorney’s legal and ethical responsibilities to indigent defendants. 14 adversely affected trial counsel’s performance. For the foregoing reasons, Masters cannot make this necessary showing, and thus his conflict of interest claim fails. See Ochoa, 45 F4th 1293, 1298–1300(III)(A) (rejecting Ochoa’s conflict of interest claim because he was represented by a different attorney at trial and Ochoa did not challenge that attorney’s effectiveness on appeal). 2. Next, Masters argues that Kolbo was ineffective because Kolbo misrepresented that he was not his attorney, gathered evidence against him, provided evidence to the State, and testified against him at trial. We conclude that Masters cannot show that he was prejudiced by any alleged deficiency. “A claim for ineffective assistance is a mixed question of law and fact, and we accept the trial court’s factual findings unless clearly erroneous but independently apply the law to those facts.” Slaughter v. State, 366 Ga. App. 803, 805 (884 SE2d 407) (2023) (quotation marks omitted). To prevail on a claim of ineffective assistance, [Masters] must prove both that his lawyer’s performance was deficient and that he was prejudiced by this deficient performance. To prove that his lawyer’s performance was deficient, [Masters] must show that the lawyer performed his duties at trial in an objectively unreasonable way, 15  considering all the circumstances, and in the light of prevailing professional norms. And to prove that he was prejudiced by his lawyer’s deficient performance, [Masters] must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.... The defendant bears the burden of proof of both prongs of an ineffective assistance claim, and if he fails to establish either prong, the reviewing court need not examine the other. Id. (citation modified). Here, Masters argues that Kolbo performed in an objectively unreasonable manner by misrepresenting that he was not his counsel, failing to inform him of the conflict of interest with Green, divulging the substance of their communications to outside parties, and testifying against him at trial. But pretermitting the alleged deficiency, Masters still cannot show that he suffered any prejudice. Kolbo’s testimony that Masters claimed ownership of the drugs was not the only evidence of Masters’ admissions that was presented at trial. As recounted above, the State also presented testimony from Judge Teatino, who testified that during Masters’ first appearance hearing, he “blurted out” that “the drugs were his and not the two other people” despite a prior warning to remain silent. Judge Teatino testified that he again 16 advised Masters not to discuss the facts of the case, but Masters said “numerous times” that the drugs were his and that Masters “kept trying to take the charges for the other two people.” The State also presented evidence of Masters’ jails calls in which he claimed ownership of the drugs. Because the State presented other evidence of Masters’ admissions that the drugs in the vehicle belonged to him, particularly testimony from a sitting judge, Masters cannot show a reasonable probability that the outcome of the trial would have been different, and thus his ineffectiveness claim fails. See Payne v. State, 314 Ga. 322, 330(3)(b) (877 SE2d 202) (2022) (defendant could not show prejudice from trial counsel’s alleged deficiency where the objectionable evidence was cumulative of other evidence that was presented at trial). 3. Next, Masters argues that the trial court erred by denying his motion in limine to exclude Kolbo’s testimony because the testimony concerned matters that were protected by the attorney-client privilege. Masters, however, cannot show reversible error in this regard. “We review a trial court’s decision regarding the application of a privilege, including the attorney-client privilege, for an abuse of discretion.” Burns v. State, 320 Ga. 320, 327(2) (907 SE2d 581) (2024). 17  “The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law, and has long been recognized in Georgia.” State v. Ledbetter, 318 Ga. 457, 461(1)(c) (899 SE2d 222) (2024) (citation modified). The privilege is codified in OCGA § 24-5-501(a)(2) which states: “There are certain admissions and communications excluded from evidence on grounds of public policy, including, but not limited to ... [c]ommunications between attorney and client.” Our Supreme Court has explained that “the privilege attaches only to communications made in the course of an attorney-client relationship[,]” St. Simons Waterfront, LLC v. Hunter, Maclean, Exley & Dunn, P.C., 293 Ga. 419, 426(1)(2) (746 SE2d 98) (2013), and “generally attaches when legal advice is sought from an attorney, and operates to protect from compelled disclosure any communications, made in confidence, relating to the matter on which the client seeks advice.” Ledbetter, 318 Ga. at 462(1)(c) (punctuation omitted). “However, because recognition of the privilege operates to exclude evidence and thus impede the truth-seeking process, the privilege is narrowly construed.” Burns, 320 Ga. at 327(2). “[T]he privilege belongs to the client, not the attorney, and the client can waive the privilege 18 explicitly or implicitly[.]” Id. (citation modified). “[Masters], as the proponent of the privilege, has the burden to establish that the privilege exists.” Id. Here, we conclude that, even if an attorney-client relationship had existed between Kolbo and Masters,11 the trial court correctly concluded that Masters did not intend for his disclosure about the ownership of the drugs to be confidential. During the November 2021 meeting with Masters, Kolbo told Masters that he was not Masters’ counsel and that the purpose of the meeting was to serve Masters with a subpoena to testify in Green’s violation of probation case. And critically, Masters acknowledged to Kolbo his belief that Kolbo was not his attorney yet proceeded to make disclosures to Kolbo in which he claimed ownership of the drugs and professed Green’s and Stake’s innocence in an apparent effort to aid Green’s and Stake’s defense. And we note that this disclosure to Kolbo occurred after Masters’ September 2021 first appearance hearing, where despite Judge Teatino’s warnings to remain silent, Masters repeatedly claimed ownership of the drugs in the vehicle. In light of these facts, we cannot say that Masters intended for his disclosures to Kolbo to remain confidential in this matter. See Bryant v. State, 282 Ga. 631, 636(4) (651 SE2d 718) 11 Again, we do not decide the issue of whether an attorney-client relationship existed between Kolbo and Masters in this case. 19 (2007) (“The attorney-client privilege protects communications between the client and the attorney that are intended to be confidential; the protection does not extend to communications which are not of a confidential nature. It does not extend to client communications to an attorney for the purpose of being conveyed by the attorney to a third party.”). But even if the trial court erred in allowing Kolbo’s testimony at trial, any error in the admission of his testimony was harmless as it likely would not have affected the result of the trial. Erroneous evidentiary rulings are subject to a harmless error test. For a nonconstitutional ruling like the one at issue here, the test for determining harmless error is whether it is highly probable that the error did not contribute to the verdict. In conducting that analysis, we review the record de novo and weigh the evidence as we would expect reasonable jurors to have done. Hong v. State, 366 Ga. App. 476, 480(1) (883 SE2d 426) (2023). “In other words, the harmless-error question turns on how much the wrongly admitted evidence likely mattered to the jury’s decision to convict. If the wrongly admitted evidence was ‘relatively benign’ or cumulative of other evidence, the State may be able to show that 20 the error was harmless.”Wilson v. State, 322 Ga. 76, 92(2)(b) (917 SE2d 726) (2025) (citation modified). Here, as recounted above in Division 2, the State presented other evidence of Masters’ statements in which he claimed ownership of the drugs in the vehicle. Judge Teatino testified that Masters “blurted out” that “the drugs were his and not the two other people,” and Masters’ jails calls in which he claimed ownership of the drugs were also presented at trial. In light of this record, any error in the admission of Masters’ statements to Kolbo likely did not affect the outcome at trial and thus Masters is not entitled to a new trial on this basis. See Revera v. State, 223 Ga. App. 450, 452(1) (477 SE2d 849) (1996) (trial court’s error in allowing the State to introduce communications covered by the attorney-client privilege was harmless where the communications were cumulative of other evidence that was presented at trial). 4. Finally, Masters argues that the cumulative effect of the errors requires that he receive a new trial. This claim, however, also fails. 21  It is well settled that “[u]nder State v. Lane,[12] we must consider collectively the prejudicial effect, if any, of trial court errors, along with the prejudice caused by any deficient performance of counsel.” Blocker v. State, 316 Ga. 568, 583(5) (889 SE2d 824) (2023). “To establish cumulative error, a defendant must show that at least two errors were committed in the course of the trial and that the multiple errors so infected the jury’s deliberation that they denied the petitioner a fundamentally fair trial.” Dickerson v. State, 323 Ga. 389, 401–02(5) (925 SE2d 507) (2026) (citation modified). Here, in Division 1, we concluded that Masters’ conflict of interest claim failed, and in Division 2, we only pretermitted the issue of trial counsel’s deficiency and concluded that Masters failed to show that he suffered prejudice. In Division 3, we concluded that the trial court did not abuse its discretion by allowing Kolbo to testify at trial, and that even if the trial court had erred in allowing Kolbo to testify, the error was harmless. In light of this record, we conclude that Masters has failed to show that there was a combined prejudicial effect from multiple errors that warrant a new trial, and thus his cumulative error claim necessarily fails. See Dickerson, 323 Ga. at 402(5) (defendant’s cumulative error claim failed where he could not establish that 12 308 Ga. 10 (838 SE2d 808) (2020). 22 multiple errors were committed during the course of his trial that had a combined prejudicial effect that warranted a new trial). Accordingly, for the foregoing reasons, we affirm Masters’ conviction, sentence, and the denial of his motion for new trial. Judgment affirmed. Doyle, P. J., concurs. Whitaker, J., concurs fully and specially. In the Court of Appeals of Georgia A26A0869. MASTERS v. THE STATE. WHITAKER, Judge, concurring specially. The problematic issues in this case arose because notices of appearance were filed on an assistant public defender’s behalf, entering his appearance as the attorney for both an indigent defendant and his indigent co-defendant; the assistant public defender determined that he would represent the co-defendant and therefore applied for conflict representation for the defendant; and the notice of appearance for the defendant was not withdrawn but rather remained in place while the process of identifying, securing, and appointing a conflict defender played out. Here’s the rub — this happens with routine frequency in our State’s superior courts. 2  The Georgia Indigent Defense Act of 2003, OCGA § 17-12-1 et seq., established the Georgia Public Defender Council, responsible for providing legal representation to indigent persons. When an indigent defendant qualifies for appointed representation, their “entitlement to the services of counsel begins not more than three business days after” applying for representation. OCGA § 17-12-23(b). And the responsibility for that representation falls first to the circuit public defender’s office. OCGA § 17-12-23(a). No provision is made for assigning separate appointed counsel to co-defendants from the outset.1 Only after the circuit public defender identifies a potential conflict of interest does the circuit public defender’s office engage in “[w]hatever procedure the [Council] director establishes for each circuit’s conflict of interest cases.” OCGA § 17-12-22(a) and (b). Thus, the circuit public defender’s office in most circuits quickly enters appearances on behalf of all qualifying indigent defendants, including co-defendants — as the Indigent Defense Act requires, and the conflict check almost always occurs only after an assistant public defender has already entered his or her appearance on 1 Nor is such a provision necessarily desirable, as there will be many occasions when no conflict will arise from joint representation of co-defendants. 3 multiple co-defendants’ behalf. When a conflict between indigent co-defendants is subsequently identified, the circuit public defender’s office applies for conflict counsel on behalf of all eligible co-defendants aside from the co-defendant that office will continue to represent. So, there is typically a period of time2 when a defendant is awaiting the appointment of conflict counsel and is effectively unrepresented, despite the filed entry by the assistant public defender. Frequently no substantive work will have been done by the assistant public defender on the conflicted co-defendant’s case, and the assistant public defender will remain nominally the conflicted co-defendant’s attorney while announcing in the interim that the “client” is awaiting appointment of conflict counsel. I do not pretend to know the solution to this complex problem.3 I do know that on the whole, public defenders, conflict defenders, other defense attorneys, and their staff across this State, along with their prosecution-side counterparts, do their 2 Sometimes this is a short period, but other times not. Amongst other challenges, conflict counsel are often contract attorneys, and payment rates may not be particularly enticing. 3 Maybe it is something as simple as language providing that representation reverts automatically to the Council, pending appointment of a conflict attorney, when a conflict arises. 4 collective best on a daily basis in our courts to live out the vision and promise of justice set forth in our Georgia and federal constitutions. 5