Gilley, Brian Shawn
Gilley, Brian Shawn
Opinion of the Court
OPINION
delivered the opinion of the Court
The appellant was convicted of aggravated sexual assault of a child, and his punishment was assessed by the jury at thirty years’ confinement in the penitentiary.
On appeal, the appellant complained that, by excluding him and his attorney from the competency examination, the trial court violated various constitutional provisions. The court of appeals rejected the appellant’s multifarious point of error in a published opinion.
FACTS AND PROCEDURAL POSTURE
In the Trial Court
When the trial court proposed to resolve the competency issue by examining the child-complainant in chambers with only the judge, the witness, and the court reporter in attendance, the appellant’s coun
On Direct Appeal
The appellant raised only one point of error on appeal. In that point of error, however, he identified three distinct constitutional bases to argue that the trial court erred to exclude him and his trial counsel from the competency examination. The trial court, he urged, denied him “his right to be present at a critical stage of the proceeding, [to] confront a witness against him[,] and have the assistance of counsel in this process.”
On Discretionary Review
In his petition for discretionary review, the appellant raised one ground for review. On its face, this ground for review was limited to a single legal issue: “Whether an accused’s Sixth Amendment right to counsel is denied if the trial court excludes counsel for the accused from attending a Rule 601 determination of the competency of a child witness?” Thus, it appeared that the appellant would have us review the one constitutional issue that the court of appeals simply did not address.
By way of his brief on the merits in this Court, however, and especially during his oral argument, the appellant has now vehemently insisted that his argument on discretionary review is limited to the proposition that he suffered a violation of his constitutional right to the assistance of counsel. He has disclaimed any present reliance upon his right of confrontation. For the first time in his brief on the merits, he has also argued that the court of appeals “sidestepped the issue” of the right to the assistance of counsel and “neither considered nor adequately analyzed the Rule 601 proceeding as a ‘critical stage’ of the adversarial process.”
ANALYSIS
Justiciability
As a general proposition, this Court will review only the “decisions” of the courts of appeals.
The appellant made no objection based upon the Sixth Amendment right to counsel when the trial court excluded his trial attorney from the competency examination.
Critical Stage
The Sixth Amendment right to counsel “extends to all ‘critical stages’ of the criminal proceeding, not just the actual trial.”
In assessing whether a particular stage of the pre-trial proceedings is a “critical” one, “the test utilized by the [Supreme] Court has called for examination of the event in order to determine whether the accused required aid in coping with legal problems or assistance in meeting his adversary.” In essence, we must scrutinize any pre-trial event with a view to ascertaining whether presence of counsel is necessary to assure fairness and the effective assistance of counsel at trial[.]25
Digesting relevant Supreme Court decisions, Professor LaFave has described the examination of a pretrial event for its criti-calness as follows:
a court must ask: (1) whether the proceeding either (i) had a consequence adverse to the defendant as to the ultimate disposition of the charge which could have been avoided or mitigated if defendant had been represented by counsel at that proceeding; or (ii) offered a potential opportunity for benefitting the defendant as to the ultimate disposition of the charge through rights that could have been exercised by counsel, and (2) whether the adverse consequence could have been avoided, or the lost opportunity regained, by action that subsequently provided counsel could have taken.26
Measured by these criteria, we think it evident that the pretrial witness-competency examination that occurred in this case was not a “critical stage” of the appellant’s trial mandating the participation of his counsel in order to ensure either the fairness of, or the effectiveness of his counsel at, the subsequent trial.
Rule 601(a)(2) provides that children “shall be incompetent to testify” if, “after being examined by the court, [they] appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”
This is not to say, of course, that a child-witness competency proceeding does not carry the potential for adverse consequences to the defendant. Simply put, if he cannot satisfy his burden to persuade the trial court that the child-witness is incompetent, the child-witness will be allowed to testify against him, often to devastating and determinative effect. The defendant’s trial counsel might have been able to prevent the child-witness’s testimony altogether by promulgating supplemental questions designed to expose the child-witness’s cognitive or truth-telling limitations, or suggesting deficiencies in the trial court’s own examination of the child-witness. Moreover, the opportunity for the defendant’s trial counsel to question the child-witness at a pretrial competency examination could improve his trial posture by providing some discovery of, and possible impeachment fodder for, the child-witness’s later trial testimony — at least to the extent that a trial court opts to allow such questioning as helpful to its free-range Rule 104(a) inquiry whether the child-witness has the sufficient intellect to relate the events that are the subject of the prosecution.
But these bare potentialities cannot serve, by themselves, to establish that the
At the conclusion of the exclusive in camera competency examination, the trial judge immediately returned to the courtroom to announce that he had questioned the child-witness and determined both that she “understands that telling the truth is the correct thing to do,” and that she “possesses sufficient intellect” to relate the events she would be called by the State to testify about. The trial judge confirmed that the court reporter had been present, “taking down all that was said[,]” and that “I had the opportunity to talk with [the child-complainant] and ask her questions of my own and also I selected some questions from those submitted by the State and those submitted by the Defendant.” The appellant’s trial counsel renewed his objection (on confrontation grounds) to this proceeding, and then observed:
And also, I would state, I don’t know— of course, we weren’t there, so I don’t know what questions you asked and just an opportunity to review that at a later date when it gets typed up and submit any — if there’s anything questionable there to prepare as part of a new trial hearing if it gets that far or whatever.
The trial court responded, “Okay. All right.” So far as the record reveals, however, though it was apparently readily available to him, the appellant never sought to obtain the court reporter’s transcript of the competency examination for use at trial. Although the appellant eventually did file a motion for new trial, he did not complain of any irregularity in the conduct of the competency examination among his grounds therefor.
The record thus establishes that the appellant was able to participate to the limited extent that he was allowed to submit questions for the trial judge to ask that the appellant deemed relevant to the competency determination, some of which the trial judge actually used.
The appellant argues that, “in Texas, ... ‘a critical stage’ of a criminal proceeding encompasses all pretrial proceedings.”
In Stincer, the Commonwealth of Kentucky argued that the Sixth Amendment Confrontation Clause was not implicated in child-witness competency hearings because those hearings are not a “stage of trial” in which evidence is presented to the ultimate trier of fact.
We hold that the appellant was not denied his Sixth Amendment right to counsel at a critical stage of the criminal proceedings. Accordingly, we affirm the judgment of the court of appeals.
. Tex. Penal Code § 22.021(a)(1)(B)(ii).
. See Tex.R. Evid. 601(a)(2) ("The following witnesses shall be incompetent to testify in any proceeding subject to these rules: ... Children or other persons who, after being examined by the court, appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.”).
. Gilley v. State, 383 S.W.3d 301 (Tex.App.Fort Worth 2012).
. Specifically, the appellant’s trial counsel objected as follows:
MR. RASMUSSEN: And Judge, let me go ahead and make objection ... to that procedure under the Sixth Amendment of the U.S. Constitution, Article 1, Section 10 of the Texas Constitution and Code of Criminal Procedure, Article 1.25, specifically that we’re — we are not allowed to be present during that examination and also allowed to examine the — the child at that time.
And I think the examination of the child is somewhat discretionary, but I think the right of confrontation would include our right to be present during the examination.
. U.S. Const, amend. VI; Tex. Const, art. I, § 10; Tex.Code Crim. Proc. art. 1.25.
. See Tex.Code Crim. Proc. art. 1.25 ("The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been taken.”).
. The Appellant claims that, because he alluded to "our right to be present” during the competency examination, his objection was sufficient to embrace his constitutional right to the presence and assistance of counsel at any critical stage of trial. But even if the appellant’s objection was sufficient thus to identify what the appellant sought — i.e., both his own presence at the competency examination and the presence of his trial counsel — it failed to identify the constitutional right to counsel at a critical stage of trial as the legal basis for his claim. See Tex.R.App. P. 33.1(a)(1)(A) (objection must “state[] the grounds for the ruling ... sought ... with sufficient specificity to make the trial court aware of the complaint”). Here, the only federal constitutional provision in support of “our right to be present” that the appellant’s trial counsel expressly invoked was the Confrontation Clause.
. See notes 20 & 22, post.
. Appellant’s Brief on Direct Appeal at 6.
. See Gilley, 383 S.W.3d at 304 ("Appellant contends that by excluding him and his counsel from the in-camera competency hearing, the trial court violated his rights to attend a critical stage of the proceedings, confront a witness against him, and have the assistance of counsel in the process.”) (emphasis added).
. The court of appeals also addressed the appellant's statutory argument that he was entitled to be present during the competency examination, accompanied by his trial counsel, under Rule 601(a)(2) itself, holding that the plain language of the rule requires no such thing. Id. at 305-06. In the body of his petition for discretionary review, the appellant argued that this holding with respect to the statute also effectively constituted a holding that the competency examination was not a "critical stage” of trial, and that the appellant therefore suffered no deprivation of his Sixth Amendment right to the assistance of counsel. Petition for Discretionary Review at 4. However, nothing about the court of appeals’s statutory analysis disposed of, or purported to dispose of, the appellant's Sixth Amendment right-to-counsel claim.
. See Petition for Discretionary Review at 6-8 (citing Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)).
. Id. at 8-10.
. Appellant’s Brief on the Merits at 19.
. See Tex.R.App. P. 47.1 ("The court of appeals must hand down a written opinion that ... addresses every issue raised and necessary to final disposition of the appeal.”); Menefee v. State, 287 S.W.3d 9, 18-19 & n. 45 (Tex.Crim.App. 2009).
. E.g., Davison v. State, 405 S.W.3d 682, 691 & n. 54 (Tex.Crim.App. 2013).
. See, e.g., Prihoda v. State, 352 S.W.3d 796, 801 (Tex.App.-San Antonio 2011, pet. ref'd) ("As an appellate court, we may refuse to review a multifarious issue or we may elect to consider the issue if we are able to determine, with reasonable certainty, the alleged error about which the complaint is made.”); Davis v. State, 329 S.W.3d 798, 803 (Tex.Crim.App. 2010) ("Because appellant bases his single point of error on more than one legal theory, his entire point of error is multifarious. Tex. R.App. P. 38.1. We will, however, review his arguments in the interest of justice.”); George E. Dix & John M. Schmolesky, 43B Texas Practice: Criminal Practice and Procedure § 55:107 (3d ed. 2011).
. We have observed that "[qjuestions of procedural default are systemic, meaning that a court of appeals may not reverse a conviction without first addressing any potential issue of procedural default, even sua sponte." Lackey v. State, 364 S.W.3d 837, 844-45 n. 28 (Tex. Crim.App. 2012). In Marin v. State, 851 S.W.2d 275, at 278 (Tex.Crim.App. 1993), we observed that the general right to the assistance of counsel is of the waiver-only variety. Moreover, the United States Supreme Court has intimated that the right to counsel at a discrete "critical stage” is lost only when knowingly and intelligently waived. Iowa v. Tovar, 541 U.S. 77, 80-81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). Whether the appellant may raise his claim of a deprivation of his constitutional right to counsel at a critical stage of his trial, however, is a question the parties have not previously briefed.
. See note 4, ante.
. See Oliver v. State, 872 S.W.2d 713, 716 (Tex.Crim.App. 1994) (an accused does not lose his right to counsel at a critical stage by inaction, but must affirmatively waive it).
.Hidalgo v. State, 983 S.W.2d 746, 752 (Tex. Crim.App. 1999). Of course, the Sixth Amendment right to counsel does not attach until the initiation of adversary judicial proceedings. Green v. State, 872 S.W.2d 717, 719 (Tex.Crim.App. 1994). There is no question that such proceedings had begun in the instant case, the trial court having conducted the witness-competency examination on the morning of jury selection and the day before trial on the merits commenced.
The appellant also invokes Article I, Section 10 of the Texas Constitution, but makes no independent argument that it should be construed any more protectively in the right-to-counsel context than the Sixth Amendment. We therefore decline to reach that issue. E.g., Barley v. State, 906 S.W.2d 27, 35-36 (Tex.Crim.App. 1995).
. Green, 872 S.W.2d at 720.
. Id. (quoting United States v. Ask, 413 U.S. 300, 313, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973)) (citation omitted).
. Wayne R. LaFave, et al., 3 Criminal Procedure § 11.2(b), at 50 (3d ed. Supp.2012-2013) (citations omitted).
. Tex.R. Evid. 601(a)(2).
. Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice; Guide to the
. Id. at 643-44 & n. 31 (citing Broussard v. State, 910 S.W.2d 952, 960 (Tex.Crim.App. 1995)).
. Tex.R. Evid. 104(a).
. See Goode et al., supra, at 641-42 (noting that the requirement of former Article 38.06 of the Texas Code of Criminal Procedure that, to be a competent witness, a child must "understand the obligation of an oath[,]” has not been carried over into current Rule 601(a)(2), but that, "[n]everthless, as a corollary of the oath requirement found in [Texas Rules of Evidence] Rule 603, courts may continue to demand that witnesses understand their responsibility to testify truthfully”).
. Clark v. State, 558 S.W.2d 887, 890 (Tex. Crim.App. 1977). Clark construed the language of former Article 38.06, which, like current Rule 601(a)(2), contained the requirement that the child-witness be "examined by the court.” Nevertheless, we held that questioning by the parties could constitute "compliance with the statute” so long as "the court makes an independent ruling on competency based upon an examination by the court, the prosecution or the defense attorney!.]” Id.
. Indeed, the court of appeals held it to be consistent with the plain language of Rule 601(a)(2) that the parties could be excluded from the witness competency examination altogether. Gilley, 383 S.W.3d at 305-06. We have no occasion to pass on that question today.
. There is no particular reason to believe that, had the appellant’s trial counsel been allowed to attend the competency examination, the trial court would have permitted him to adduce questions different than or in addition to those he submitted in writing that were actually posed to the child-witness at the in camera competency examination.
. Whatever trial counsel’s failure to actually review the transcript may portend with respect to his actual effectiveness, that the op
. As the Supreme Court has noted in the Sixth Amendment Confrontation Clause context, "the determination of [child-witness] competency is an ongoing one for the judge to make based on the witness’ actual testimony at trial.” Stincer, 482 U.S. at 740, 107 S.Ct. 2658. And "[i]n Texas, the scope of cross-examination is wide open." Felder v. State, 848 S.W.2d 85, 99 (Tex.Crim.App. 1992). See Tex.R. Evid. 611(b) ("A witness may be cross-examined on any matter relevant to any issue in the case, including credibility.”). Thus, as in Stincer, here,
[a]t the close of the [child's] testimony, [the appellant’s] counsel, had he thought it appropriate, was in a position to move that the court reconsider its competency ruling[] on the ground that the direct and cross-examination had elicited evidence that the young girl[ ] lacked the basic requisites for serving as a competent witness[], Stincer, supra, at 744, 107 S.Ct. 2658.
. 413 U.S. at 316, 93 S.Ct. 2568. Indeed, it is at least marginally relevant to the critical stage determination that neither the appellant's trial counsel nor the prosecutor was allowed to attend the competency examination in this case; each side was limited to submitting proposed questions. In Ash, the Supreme Court underscored not only the Sixth Amendment concern that the accused not stand alone at any pretrial proceeding "where the results might well settle [his] fate and reduce the trial itself to a mere formality [,] ” but also the need to assure that, under those circumstances, he would receive "aid in coping with legal problems or assistance in meeting his adversary " — namely, the prosecutor. Id. at 310, 313, 93 S.Ct. 2568 (emphasis added). Because the prosecutor’s involvement in the competency examination was just as limited as the appellant’s, there is no danger in this case that the appellant’s interests may have been prosecutorially steamrollered.
. See United States v. Wade, 388 U.S. 218, 225, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (pretrial proceeding constitutes a “critical stage” if the absence of counsel results in a right or defense that "may be irretrievably lost, if not then and there asserted”) (quoting Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 7 L.Ed.2d 114 (1961)).
. Appellant’s Brief on the Merits at 13.
. Id. at 13 n. 38 (citing Adanandus v. State, 866 S.W.2d 210, 219 n. 7 (Tex.Crim.App. 1993)). The issue in Adanandus was the appellant’s statutory right to be personally present during an "in-chambers meeting [that] was held in appellant’s absence between the trial judge, the prosecutor and defense counsel.” Adanandus, supra, at 217. Thus, it does not speak to the Sixth Amendment right to counsel at all, much less does it hold that all pretrial proceedings in Texas must be re
. 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
. Having earlier found that the right to confrontation- — or, more specifically, the right to cross-examination that confrontation partly entails — "is essentially a ‘functional’ right designed to promote reliability in the truth-finding functions of a criminal trial[,]“ the Supreme Court in Stincer did not regard its analysis as complete with the simple conclusion that the competency hearing had an impact on the conduct of the trial in the sense that it would determine "whether a key witness will testify.” 482 U.S. at 737, 740, 107 S.Ct. 2658. Instead, it continued:
Instead of attempting to characterize a competency hearing as a trial or pretrial proceeding, it is more useful to consider whether excluding the defendant from the hearing interferes with his opportunity for effective cross-examination. No such interference occurred when respondent was excluded from the competency hearing of the two young girls in this case.
Id. at 740, 107 S.Ct. 2658. Similarly, whether a pretrial proceeding should be regarded as a "critical stage” for Sixth Amendment right-to-counsel purposes ultimately depends on "whether presence of counsel is necessary to assure fairness and the effective assistance of counsel” in the particular trial. Green, 872 S.W.2d at 720. Thus, it is insufficient simply to inquire generally whether a category of pretrial proceedings counts as a "critical stage.”
.Gilley, 383 S.W.3d at 306-08.
Dissenting Opinion
filed a dissenting opinion.
I respectfully dissent. The trial judge asked the child questions “of my own” and other questions selected from questions submitted by the state and the defendant, but the trial judge did not reveal either how many questions from the judge, the state, and the defense were asked or the content of such questions.
As the Court’s opinion notes, Texas Rule of Evidence 601(a) provides that children are incompetent to testify if “after being examined by the court, [they] appear not to possess sufficient intellect to relate transactions with respect to which they are interrogated.” The Court’s opinion also quotes Professors Goode, Welborn, and Sharlot for the proposition that the “party seeking to exclude the witness from testifying must raise the issue of his competency and shoulders the burden of establishing incompetency.”
The Court’s opinion speculates that trial counsel “might have been able to prevent the child-witness’s testimony altogether by promulgating supplemental questions designed to expose the child-witness’s cognitive or truth-telling limitation, or suggesting deficiencies in the trial court’s own examination of the child-witness.” (Emphasis added.) Again, just how does the party seeking to exclude the witness do that if that party is not permitted to question the child or even to witness the questioning of the child by another person, whether judge, prosecutor, or child-protection counselor? Counsel will not know what questions were asked and therefore cannot know what “supplemental” questions to promulgate. How can counsel suggest deficiencies in the trial court’s examination of the child when counsel has not been permitted to see and hear the questions and the responses? Body language, tone, and inflection can, and frequently do, drastically change the tenor and import of a question, yet counsel was denied the opportunity to observe body language, tone, and inflection, and these things are not discernible from a cold, written record. Young children may not yet understand such things, but adults, especially adults who are parents, generally do and can also recognize questions that are ambiguous or too complicated for a young child to decipher. Again, we cannot constitutionally use, as a standard, a task that cannot be performed.
The Court’s opinion also states that the defense counsel did not attempt to obtain the court reporter’s transcription of the trial judge’s interrogation of the child and suggests that “it was apparently readily available to him....” Yet I find no indication in the Court’s opinion of when the
Finally, the reliance of the Court’s opinion on Kentucky v. Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987), is misplaced because, contrary to the facts in this case, Stincer’s attorney was present during the trial court’s examination of the witnesses and was permitted to question the prospective witnesses; only the defendant was excluded.
After a jury was sworn, but before the presentation of evidence, the court conducted an in-chambers hearing to determine if the two young girls were competent to testify. Over his objection, respondent, but not his counsel (a public defender), was excluded from this hearing. The two children were examined separately and the judge, the prosecutor, and respondent’s counsel asked questions of each girl to determine if she were capable of remembering basic facts and of distinguishing between telling the truth and telling a lie.... T. G., the 8-year-old, was asked her age, her date of birth, the name of her school, the names of her teachers, and the name of her Sunday school. She was also asked whether she knew what it meant to tell the truth, and whether she could keep a promise to God to tell the truth.... N. G., the 7-year-old girl, was asked similar questions.... The two children were not asked about the substance of the testimony they were to give at trial. The court ruled that the girls were competent to testify. Respondent’s counsel did not object to these rulings.
Id. at 732-33,107 S.Ct. 2658, footnotes and citations omitted.
I would hold that examination by the trial court to determine the competence of the witness to testify is a “critical stage.” The issue in such an examination is whether any evidence offered by that witness would be properly before the finder of fact. This is similar to the issue at a hearing on a motion to suppress evidence: is the proffered evidence properly before the finder of fact? Certainly, a hearing on a motion to suppress is a critical stage because it has a direct relationship with the trial. As the United States Supreme Court stated in Stincer, “Moreover, although questions regarding the guilt or innocence of the defendant usually are not asked at a competency hearing, the hearing retains a direct
I dissent.
. Steven Goode, Olin Guy Wellborn III & M. Michael Sharlot, 1 Texas Practice: Guide to the Texas Rules of Evidence § 601.2, at 643 (3d ed. 2002) (citations omitted).
Dissenting Opinion
filed a dissenting opinion
Because the court of appeals did not address Brian Gilley’s right-to-counsel claim, this case should be dismissed as improvidently granted, or in the alternative, remanded to the court of appeals to consider his claim.
The Court claims that Gilley’s right-to-counsel complaint was found in a multifarious point of error in his brief below, presumably because Gilley asserted multiple supporting legal theories. If Gilley’s point of error was multifarious, the lower court was not required to address his right-to-counsel claim, even though it could have if it so chose.
As the majority correctly notes, Gilley urges us to review his right-to-counsel complaint for the first time on discretionary review. While the Court recognizes that we ordinarily do not address issues not first decided by the court of appeals, it invokes a “judicial economy” exception to reach out and resolve Gilley’s right-to-counsel claim de novo. I agree that there may be cases when the resolution of outstanding issues is so clear that the principle of judicial economy permits resolving the issues on discretionary review. I am not convinced, however, that this case is one of them.
In support of its judicial-economy rationale, the Court states that remanding the case to the court of appeals would require it to resolve “ancillary” issues like whether it is appropriate to reach Gilley’s right-to-counsel claim because it is embedded in a multifarious point of error. But if it is unclear whether the court of appeals should have addressed this issue, how is judicial economy furthered by addressing it here? Moreover, it is reasonable to assume that, in omitting any discussion of Gilley’s right-to-counsel, the court of appeals already implicitly passed on that issue and concluded that it was not appropriate to address it. The Court’s second issue it labels as ancillary is not ancillary at all. Whether Gilley may bring his right-to-counsel complaint for the first time on appeal is a threshold issue. In fact, it is the first issue the Court addresses in its analysis of Gilley’s claim on the merits.
More importantly, whether the witness-competency hearing was a critical stage in which Gilley’s right to counsel attached is not a trifling issue easily dispatched. It is indeed an issue of first impression with weighty constitutional implications. The Court’s analysis of the nature of a witness-competency hearing under Texas Rule of Evidence 601, how this particular witness-competency hearing was performed, and the interpretation of United States Su
The Court’s concern about judicial economy is respectable, but it should not come at the cost of dismissing Texas Rule of Appellate Procedure 66.3’s provisions that this Court only reviews the decisions of the court of appeals and diminishing this Court’s role as a discretionary review court. If the Court believes that Gilley’s right-to-counsel claim should have been addressed below — which it undoubtedly does — the proper course of action would be to remand the case to the court of appeals to address it.
The resolution of Gilley’s claim for the first time on discretionary review is imprudent. For this reason, I dissent.
. Ante, op. at 119 n. 19 (citing generally cases that hold an appellate court may refuse or elect to review a multifarious issue).
. See Tex.R.App. Proc. 47.1 ("The court of appeals must hand down a written opinion that ... addresses every issue raised and necessary to the final disposition of the appeal.”).
Reference
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