Champ v. State ( 2021 )

In the Supreme Court of Georgia
Decided: February 15, 2021
S20A1552. CHAMP v. THE STATE.
NAHMIAS, Presiding Justice.
Appellant Dekito Champ was convicted of malice murder and
a firearm offense in connection with the shooting death of his former
girlfriend, Jana Watson. Appellant’s sole claim on appeal is that the
trial court erred by violating his Georgia constitutional right to be
present at numerous bench conferences that occurred during jury
selection. We conclude that the evidence presented at Appellant’s
trial was sufficient to support his convictions, so we affirm that part
of the trial court’s judgment. However, as explained further below,
because Appellant’s right-to-be-present claim was raised for the first
time on appeal, there was no opportunity for the State to develop the
record and no findings or rulings by the trial court as to that claim,
particularly as to whether Appellant acquiesced to his absences from
the bench conferences. We therefore vacate the trial court’s
judgment in part and remand the case for that court to hold a
hearing and rule in the first instance on Appellant’s constitutional
claim. 1
1. Viewed in the light most favorable to the verdicts, the
evidence presented at Appellant’s trial showed the following.
Appellant and Watson started dating in 2012 and at times had a
tumultuous relationship, during which Watson called the police
about Appellant on multiple occasions. In January 2016, Watson
ended the relationship. Appellant then began harassing her by
1 Watson was killed on March 20, 2016. In June 2016, a Ben Hill County
grand jury indicted Appellant for malice murder, felony murder, aggravated
assault, possession of a firearm during the commission of a felony, and theft by
receiving stolen property. The theft charge was later nolle prossed. At a trial
from April 9 to 18, 2018, the jury found Appellant guilty of the remaining
charges. The trial court sentenced him to serve life in prison for malice murder
and five consecutive years for the firearm conviction; the felony murder count
was vacated by operation of law. Although the court indicated that the
aggravated assault count was also vacated by operation of law, that count
actually merged into the malice murder conviction. See Malcolm v. State, 263
Ga. 369, 372-374 (434 SE2d 479) (1993). Appellant filed two timely motions for
new trial. After a hearing, the trial court filed an order denying the motions in
January 2020. Appellant then filed a timely notice of appeal. The case was
docketed to this Court’s August 2020 term and orally argued on November 4,
2020.
2
phone and in person, including an occasion when he showed up at
her workplace with a pistol. He also repeatedly threatened to
commit suicide if she refused to resume their relationship.
On March 17, 2016, Appellant told Watson that he planned to
euthanize the dog they had shared, and Watson offered to take it.
Later that day, Appellant sent Watson text messages threatening to
send sexually explicit images of her to her mother and her father’s
colleagues, prompting Watson to inform Appellant that if he did not
stop contacting her, she would take legal action. Appellant replied,
“Wow. Okay. I’m done.”
On the morning of March 20, Watson drove from Atlanta to
Fitzgerald, where Appellant was living with his mother and
grandmother, to retrieve the dog. As Watson was preparing to leave,
Appellant’s mother saw him standing by the open door of Watson’s
car while she sat in the driver’s seat; they were having a “heated
conversation.” Appellant’s mother went inside the house, and
shortly thereafter, she heard gunshots. She ran outside, saw that
Watson had been shot, and called 911. Two neighbors also saw
3
Appellant and Watson talking at Watson’s car before the neighbors
went inside their house. Moments later, they heard two rounds of
gunfire – three muffled shots soon followed by three louder shots –
and looked out their window to see Appellant crawling along the
ground outside the driver’s side of Watson’s car. Appellant’s 9mm
pistol was found on the ground nearby. Watson, who had suffered
four contact gunshot wounds to her upper left chest, died at the
scene. Appellant, who had three contact gunshot wounds to his
upper left chest, was airlifted to a hospital.
Appellant testified at trial, claiming that Watson had found his
gun in his truck, taken it, and then shot him as he squatted by her
car, before he took the gun from her and shot back while still
squatting. But the police found a four-page suicide note in
Appellant’s jacket pocket that said in part: “The woman I’ve done
everything possible for doesn’t want me. She doesn’t care about me
nor our family.” And the forensic evidence presented at trial
indicated that Watson’s contact wounds were not consistent with a
struggle over the gun and that the downward trajectory of the
4
bullets that struck her was not consistent with the shooter’s being
in a squatting position.
Appellant does not challenge the legal sufficiency of the
evidence supporting his convictions. Nevertheless, in accordance
with this Court’s practice in murder cases, we have reviewed the
record and conclude that, when viewed in the light most favorable
to the verdicts, the evidence presented at trial and summarized
above was sufficient to authorize a rational jury to find Appellant
guilty beyond a reasonable doubt of the crimes of which he was
convicted. See Jackson v. Virginia, 443 U.S. 307, 319 (99 SCt 2781,
61 LE2d 560) (1979). See also Vega v. State, 285 Ga. 32, 33 (673 SE2d
223) (2009) (“‘It was for the jury to determine the credibility of the
witnesses and to resolve any conflicts or inconsistencies in the
evidence.’” (citation omitted)).2
2. Appellant contends that his absences from a number of
2 We remind litigants that this Court will end our practice of considering
the sufficiency of the evidence sua sponte in non-death penalty cases with cases
docketed to the term of court that began in December 2020. See Davenport v.
State, 309 Ga. 385, 399 (846 SE2d 83) (2020). The Court began assigning cases
to the December term on August 3, 2020.
5
bench conferences during the jury selection process at his trial
violated his right under the Georgia Constitution to be present
during all critical stages of the criminal proceedings against him,
and that he did not waive his right to be present or acquiesce to his
absences. As explained below, this claim, and particularly whether
Appellant acquiesced to his absences from the bench conferences,
should be addressed in the first instance by the trial court on
remand.
(a) The transcript of Appellant’s trial provides the following
information about what he could see or hear while present in the
courtroom during the jury selection process, what the trial court
explained about that process, and what occurred at the series of
bench conferences described below that Appellant could see, but not
hear.
(1) Preliminary instructions: In the trial court’s preliminary
instructions to the prospective jurors, the court explained that the
law gives the attorneys for the State and the defendant the right to
question prospective jurors concerning their qualifications to serve
6
as trial jurors. The court also explained that the lawyers would ask
questions to panels of 14 jurors until they had enough potential
jurors to select from.
(2) Prospective Juror M 3: When the trial court asked the first
panel of prospective jurors if they could hear or understand the
court, Juror M said that she did not understand English very well
and did not know if that would prevent her from understanding
everything going on in the trial. The court asked the lawyers to
approach for a bench conference, where it asked them if there were
any problems with excusing Juror M for cause. Neither lawyer
objected. The court then announced in open court that Juror M was
being “excuse[d] for cause.”
(3) Prospective Jurors C.S., C.Z., and R.H.: When the
prosecutor asked the panel if any of them knew Appellant, Juror
C.S. said that he knew Appellant’s mother and uncles; he added that
he considered his relationship with them to be a close relationship
3 We will refer to the jurors by their initials; the record does not indicate
this juror’s first name.
7
and indicated that it would make it hard for him to be fair and
impartial. Later, defense counsel asked the panel if any jurors felt
that because this case involved a homicide, it was not appropriate
for them to serve, or if they had religious or philosophical reasons
for not wanting to be selected to serve. Juror C.S. reiterated that
Appellant’s mother and uncles were “like family” and that it would
be hard for him to find Appellant guilty.
When the prosecutor asked the panel if any of them lived in the
area where the incident occurred, Juror C.Z. said that her husband’s
uncle lived across the street and that she and her husband had been
there on the date of the shooting. The prosecutor requested a bench
conference, where he asked to reserve the right to question Juror
C.Z. later to avoid tainting the jury pool. The trial court decided to
bring Juror C.Z. up to the bench to question her at that time. When
she was at the bench, the court told her they were going to ask her
questions in a low tone of voice so the other jurors could not
overhear. Counsel for both parties then questioned her about what
she knew regarding the incident prior to coming to court. Juror C.Z.
8
told them that she and her husband were “pulling up as all the
ambulance[s] and stuff were there”; however, she also said that they
had heard gunshots and looked out the window, but they had not
really observed anything until the ambulance and the police arrived.
Juror C.Z. said she knew “it happened in a vehicle and all that, but
that’s about it.” She also confirmed that she had not spoken to the
police, but she was not sure if her husband’s uncle had.
Later, during further questioning of the panel in open court,
Juror C.Z. said that her husband was a convicted felon, but that she
did not have any bias for or against the district attorney’s office as a
result of its prosecution of her husband’s case. In response to a
question about whether any of the jurors’ attention would be divided
if they had to serve for a multiple-day trial, Juror C.Z. said that she
would have a problem because her place of employment had only a
handful of people working there and they had a lot of jobs to do.
In response to a question asking if any prospective jurors had
mental health training, Juror R.H. said, “I don’t really have a
problem,” adding, “I can’t read or write.” When he later explained
9
why he did not have a Facebook account, he reiterated that he could
not read or write.
At a bench conference after the questioning of this first panel
concluded, defense counsel said, “I didn’t want to do it until after I
finished to try not to taint the panel, but I think the issue with [Juror
C.Z.] --” at which point the prosecutor interjected that he had no
objection and the trial court said that it would excuse Juror C.Z. for
cause. The prosecutor then moved to excuse Juror C.S. for cause,
and defense counsel had no objection. Defense counsel then said, “I
was thinking about [Juror R.H.] for the fact--” at which point the
prosecutor said he had no objection. 4 Much later, just before the
lawyers began the silent strikes to exercise their peremptory
challenges, the trial court announced in open court that Jurors C.S.,
C.Z., and R.H. were “excused” and could leave the courtroom.
4 Defense counsel also moved to excuse Juror M.R., whose questioning in
open court had shown that he worked at a jail and had previously served as a
witness for the State. The prosecutor did not agree with excusing Juror M.R.
for cause because the juror had said that he could be fair and impartial, but
the prosecutor agreed that defense counsel had a basis to strike the juror. The
trial court informed the lawyers that it was not planning to excuse Juror M.R.
for cause. In his brief here, Appellant raises no issue regarding the discussion
of Juror M.R.
10
(4) Prospective Juror Q.P. and the entire second panel: The
prosecutor asked the next panel of prospective jurors whether any
of them knew Appellant or his family. Juror Q.P. responded that he
and Appellant were incarcerated together at the county jail. The
prosecutor then asked for a bench conference, at which the lawyers
and the trial court discussed options for moving forward in light of
this response. Defense counsel indicated that Appellant had written
down some names, including Juror Q.P.’s name, before questioning
began, saying specifically: “Your Honor, I wasn’t expecting that
[response], but [Appellant] wrote that down beforehand.”
It was unclear to the court and the lawyers who may have
heard Juror Q.P.’s response, because he spoke softly and the judge
had not been able to hear him. Accordingly, the court, with
agreement from the lawyers, decided that it needed to excuse the
entire second panel, but they did not think the other panels had
heard Juror Q.P.’s response. Defense counsel mentioned that he did
not want to draw attention to the fact that they were removing an
entire panel. The court therefore agreed to proceed with questioning
11
the panel to avoid a spectacle and then to excuse the entire panel
just before lunch.
The prosecutor also said that if the panel was being excused,
he would not ask Juror Q.P. any more questions. Defense counsel
said, “Yeah, but I was already going to – my client wrote these
names down before we started.” When the prosecutor then asked,
“[A]m I going to have the same issue with [Juror M.C.], because [he]
has been in jail? I know he’s been in the jail.” Defense counsel
replied:
I don’t think we’ll have that issue. It’s just that
[Appellant] was in jail with [Juror Q.P.] and I think he
knows [Juror M.C.] more, not from jail, but from school.
So, what I’ll have him do is each person we’ll write the
names in advance, so I could be listening to their
questions.
The questioning of the second panel (purely for show) then
resumed in open court. When the questioning concluded just before
lunch, the trial court called a bench conference at which the court
suggested bringing each of the 14 jurors from the panel to the bench
individually and excusing them without telling them why, then
12
asking the remaining panels as a whole if anyone had heard Juror
Q.P.’s response. The court, with the lawyers at the bench, then called
the 14 jurors up individually and excused each of them for cause. No
announcement of these excusals was made in open court. When this
long bench conference ended, the court asked if any of the remaining
prospective jurors had heard any answers that Juror Q.P. gave while
he was being questioned. No one raised a hand. The court then
recessed for lunch.
(5) Prospective Juror J.R.: Immediately after proceedings
began following the lunch break, the trial court asked to see the
lawyers for another bench conference. The court informed the
lawyers that it had excused Juror J.R. right before lunch because he
was experiencing severe back pain. Neither lawyer objected. This
juror’s excusal also was not announced in open court.
(6) Prospective Jurors L.M. and P.B.: Following the questioning
of the third panel of prospective jurors, the trial court held a bench
conference to discuss excusals for cause. Defense counsel moved to
excuse Juror L.M. because she had said that her father-in-law was
13
the chief of police. The court declined to excuse her for cause. At a
similar bench conference after the questioning of the fourth and
final panel, defense counsel sought to excuse Juror P.B. because she
had said that her husband’s cousin was going to be a witness. The
prosecutor argued against excusal based on Juror P.B.’s other
answers, and the court decided not to excuse her for cause.
(7) Prospective Juror D.C., preemptory strikes, and final jury
selection: After the voir dire questioning was completed, the trial
court explained the remainder of the jury selection process to the
prospective jurors in open court, saying that the law gives the
lawyers a recess so they can go over their notes and prepare for jury
selection; after the recess, the lawyers would select the jury silently,
and the clerk would go back and forth between the two tables; the
lawyers would have up to nine strikes each, and there would be 30
names listed, so the 12 that were left over would be the jury; and
two alternates would be selected as well.
The court then announced a recess, which lasted 26 minutes.
When the recess ended, the trial court announced in open court that
14
it had excused Juror D.C. during the recess because of an emergency
medical situation in his family and that the lawyers had agreed to
his excusal; the record does not indicate when or where the lawyers
so agreed.
The court then asked everyone to sit quietly while the clerk
passed the “roster” back and forth between the tables and the
lawyers made their strikes. 5 The court said that it would ask the
clerk to read the names of the jurors after the lawyers finished.
Immediately after the court announced that jury selection had
begun, a bench conference took place, at which the court explained
to the lawyers that there were six additional names listed at the
bottom of the list that could be used for alternates if the lawyers
went through the first 30 jurors with their strikes. The silent strike
process then began. Another bench conference occurred during the
5 The juror list in the record appears to be the “roster” that was used for
the silent strikes. The list contains the 36 names of prospective jurors who were
available for selection and omits the 20 names of prospective jurors who had
been removed for cause or hardship. The record does not show if this juror list
was provided to the parties before the pre-selection recess or whether
Appellant received or was shown a copy of the list.
15
process, at which the process for selecting alternates was briefly
clarified. After the silent strike process was completed, the court
asked to see the list and for counsel to approach the bench. At this
bench conference, the court asked for any objections to the jury
selection process. Neither lawyer objected. The court then asked the
clerk in open court to read the names of the 14 jurors selected and
for those jurors to fill in the jury box. Once the names were read and
the jurors selected entered the jury box, the trial jury was sworn.
Based on the trial transcript, at no point during the jury
selection process or later during his trial did Appellant object to, ask
about, or otherwise mention his absence from these bench
conferences, the discussions at the bench conferences, or the excusal
or retention of any of the prospective jurors.
(8) Post-trial proceedings: The record shows that after the jury
found Appellant guilty and the trial court sentenced him, he filed
two motions for new trial, one through his trial counsel and the other
through a lawyer who briefly represented him; a third lawyer filed
a “brief in support of amended motion for new trial” and then
16
represented Appellant at the hearing on the motions. The motions
raised the general grounds and the sufficiency of the evidence and
alleged that the trial court committed an unspecified “error of law”;
only the general grounds and sufficiency were argued in the brief
and at the hearing. The jury-selection bench conferences were not
mentioned in any of these filings or at the hearing, and no right-to-
be-present claim was raised, so the trial court did not rule on any
such claim in its order denying the motions. Appellant retained his
current counsel after his notice of appeal was filed, and the only
claim raised in his brief in this Court is the alleged violation of his
Georgia constitutional right to be present with respect to the jury-
selection bench conferences described above.
(b) This Court has long held that “the Georgia Constitution
guarantees criminal defendants ‘the right to be present, and see and
hear, all the proceedings which are had against him on [his] trial
before the [c]ourt.’” Zamora v. State, 291 Ga. 512, 517-518 (731 SE2d
658) (2012) (quoting Wade v. State, 12 Ga. 25, 29 (1852)). We have
explained that this right may be violated when a defendant is
17
excluded from conferences held at the bench between the trial court
and the lawyers for the parties, because while the defendant may be
present in open court and thus able to see such bench conferences,
he presumably cannot hear what is discussed (as preventing jurors
and others in the courtroom from hearing such conferences is their
very purpose). See id. at 518.6
The right to be present does not extend to situations where the
defendant’s presence “bears no relation, reasonably substantial, to
the fullness of his opportunity to defend against the charge,” and
thus “would be useless, or the benefit but a shadow.” Heywood v.
State, 292 Ga. 771, 774 (743 SE2d 12) (2013) (citation and
punctuation omitted). Such situations include bench conferences
that deal with questions of law involving “essentially legal argument
about which the defendant presumably has no knowledge,” or with
procedural or logistical matters. Id. (citation and punctuation
omitted). However, “‘[p]roceedings at which the jury composition is
6 In this case, for instance, the trial court told Juror C.Z. when she was
called to the bench that the court and the lawyers would ask her questions in
a low tone so that the other prospective jurors could not overhear.
18
selected or changed are . . . critical stage[s] [of a trial] at which the
defendant is entitled to be present,’” Zamora, 291 Ga. at 518(citation omitted), and we have repeatedly held that a defendant has
the right to participate in a bench conference during which a
prospective juror or a trial juror is discussed and removed. See, e.g.,
id.; Murphy v. State, 299 Ga. 238, 240 (787 SE2d 721) (2016) (“[A]
defendant who is present in the courtroom but who does not
participate in a bench conference at which a juror is discussed and
dismissed is not ‘present’ to the extent required under the . . . state
Constitution[].”).
The trial transcript indicates that Appellant could not hear,
and therefore was not “present,” for any of the bench conferences at
issue. Some portions of the bench conferences might be
characterized as discussion of logistical or procedural issues
regarding the jury selection process or legal argument about
removal of particular prospective jurors (although we note that “this
Court’s precedents to date have not drawn a distinction between
factual and legal issues with regard to a defendant’s right to be
19
present during discussions about a juror’s removal,” Goodrum v.
State, 303 Ga. 414, 419 (812 SE2d 220) (2018) (Nahmias, J.,
concurring)). Several of the bench conferences involved or related to
direct discussions between the trial court and prospective jurors,
however, and the court also made the decision to remove a number
of prospective jurors during the bench conferences. At least for those
bench conferences, Appellant had a constitutional right to be
present. See, e.g., Murphy, 299 Ga. at 240; Zamora, 291 Ga. at 518.
Indeed, once Appellant raised a right-to-be-present claim in his brief
to this Court, the State in its response brief forthrightly conceded
this point.
(c) This concession does not end the analysis, however, because
“‘the right to be present belongs to the defendant, and he is free to
relinquish it if he so chooses.’” Brewner v. State, 302 Ga. 6, 11 (804
SE2d 94) (2017) (citation omitted). A defendant may relinquish his
right in several ways: if he personally waives the right in court; if
his counsel waives the right at his express direction; if his counsel
waives the right in open court while he is present; or, as seen most
20
commonly in our case law, if his counsel waives the right and the
defendant subsequently acquiesces to that waiver. See id. There is
no indication in the record the Appellant personally waived his right
to be present for these bench conferences or that his counsel waived
that right in Appellant’s presence or with his express authority.
Compare id. at 12.
The question of acquiescence, however, is unclear.
Acquiescence may occur when a defendant remains silent after he
becomes aware of the proceedings occurring in his absence, so long
as he had sufficient information concerning the matters occurring
outside his presence for his silence to be fairly construed as consent.
See Howard v. State, 307 Ga. 12, 21 (834 SE2d 11) (2019). See also
Jackson v. State, 278 Ga. 235, 237 (599 SE2d 129) (2004)
(“[A]ppellants acquiesced in the proceedings when their counsel
made no objection and appellants thereafter remained silent after
the subject was brought to their attention.”). The determination of
whether a defendant acquiesced to the violation of his right to be
present is often highly fact-specific. See, e.g., Burney v. State, 299
21
Ga. 813, 820-821 (792 SE2d 354) (2016); Smith v. State, 298 Ga. 406,
410-411 (782 SE2d 269) (2016); Zamora, 291 Ga. at 519-520. And
the trial court’s findings of fact on the issue will be upheld on appeal
unless clearly erroneous. See Howard, 307 Ga. at 21. 7
In this case, the existing record shows that the trial court
provided the prospective jurors and Appellant an overview of how
the jury selection process would work. Appellant was present in the
courtroom throughout that process, able to see all of the bench
conferences as they occurred without his direct participation. He
7 The State argues that Appellant waived his right-to-be-present claim
simply because he did not raise it until this appeal. But as discussed above, we
have held that this is a personal right of the defendant that cannot be waived
merely by the failure of his counsel to timely assert it; it must be relinquished
by the defendant himself in one of the ways just discussed, which cannot occur
until he is made sufficiently aware of the matter. See, e.g., Pennie v. State, 271
Ga. 419, 421-422 (520 SE2d 448) (1999) (holding that the defendant did not
waive review of her right-to-be-present claim where her “lack of knowledge [of
the proceeding held in her absence] prevented her from raising the issue during
trial” and she raised it “‘at the first opportunity,’” which was on motion for new
trial after her appellate counsel reviewed the trial transcript and advised her
of the issue (citation omitted)). Only if the defendant remains silent after
becoming aware of the issue, rather than raising it at the first available
opportunity, will we deem an effective waiver – which our cases generally call
“acquiescence” – to have occurred. See, e.g., Zamora, 291 Ga. at 520. As
discussed below, the point in time at which Appellant became aware of the
issue in this case – whether at trial, during the motion for new trial proceeding,
or only thereafter – is a matter to be determined on remand.
22
was present for the questioning of particular prospective jurors
leading up to bench conferences, the court’s subsequent excusal of
some of those jurors in open court, the silent strike process for the
remaining jurors, and the seating of the jurors ultimately selected
to try his case. Yet he never raised any question or concern about
any of the bench conferences. From what Appellant was able to see
and hear, it might be possible for a court to conclude that he had
sufficient information about the subject of at least some of the bench
conferences to have acquiesced to his absence from them. See, e.g.,
Smith, 298 Ga. at 410-411 (concluding that the defendant
acquiesced to the removal of a prospective juror while he was taking
an emergency restroom break, where he heard the juror’s answer
that could be and in fact was the reason for her removal for cause,
had previously seen another juror removed for similar cause, and
was repeatedly informed that the disputed juror had been removed
for cause, but did not object to his absence or the prospective juror’s
removal during the trial).
That would be a more difficult conclusion to reach, based on the
23
existing record, with regard to at least two of the bench conferences
during which prospective jurors were removed. First, at the long
bench conference just before the lunch break, the trial court called
up individually the 14 jurors on Juror Q.P.’s panel and excused each
of those jurors for cause, without ever announcing the excusals in
open court. An observer who had heard Juror Q.P.’s answer in open
court about knowing Appellant from the county jail and realized
after this bench conference that Juror Q.P. had been excused might
infer what had happened with regard to that juror at the bench
conference. But the other 13 jurors who were excused provided no
information in open court to support their removal for cause;
instead, they were removed because the court and the lawyers
surmised (at an earlier bench conference) that those jurors were
more likely to have heard Juror Q.P.’s answer than the other
prospective jurors in the courtroom (who were then asked
collectively if they had heard any of Juror Q.P.’s answers), but that
was not explained in open court.
Second, at the bench conference right after the lunch break, the
24
trial court informed the lawyers that it had excused prospective
Juror J.R. just before lunch because the juror was experiencing back
pain. An observer like Appellant would know none of that; Juror J.R.
was simply gone, if indeed that was noticed. See, e.g., Ward v. State,
288 Ga. 641, 644-646 (706 SE2d 430) (2011) (concluding that the
defendants did not acquiesce to the trial court’s ex parte excusal of
a trial juror during a lunch break during trial, where the court
informed the lawyers of the excusal before the defendants returned
to the courtroom but the defendants were not informed by the court
or by their lawyers, according to their lawyers’ testimony at the
motion for new trial hearing).
Yet defendants often may know more about the subject of
proceedings in which they do not participate than is apparent from
a trial transcript. In particular, defense lawyers generally advise
their clients about what is occurring during trial, and thus may
inform their clients of the subject of bench conferences and other
proceedings in which the defendants do not directly participate,
25
making clear the defendants’ acquiescence to their absences.8 In
addition, defendants may be able to see things that may not be
shown by the trial transcript, like a juror who was summoned to a
bench conference immediately leaving the courtroom and not
returning – a good indication that the conference involved the
dismissal of that juror. Cf. Zamora, 291 Ga. at 519.
If not raised and resolved during trial, a claim that a
8 See, e.g., Nesby v. State, Case No. S21A0207, 2021 WL 78534, at *3 (Ga.
Jan. 11, 2021) (concluding that the defendant acquiesced to his absence from a
bench conference about the removal of prospective jurors for hardship in part
because his “trial counsel testified at the hearing on the motion for new trial
that, during the proceedings in this case, he discussed all the issues with [the
defendant] that were raised with the court during the bench conferences, and
the trial court expressly credited counsel’s testimony”); Parker v. State, 220 Ga.
App. 303, 312 (469 SE2d 410) (1996) (holding that Parker acquiesced to his
absence from a brief hearing at which a juror was discussed based on the
following: “Defense counsel testified [at the motion for new trial hearing] that
since it was his normal policy to ensure the defendant’s presence at all times,
he would have informed Parker of what happened when he returned [from the
colloquy with the trial court]. Parker did not contradict defense counsel’s
testimony. Accordingly, there was evidence upon which the trial court could
conclude that defense counsel immediately informed Parker that the trial court
requested and counsel agreed to waive his presence at the brief hearing. There
is no evidence that Parker subsequently indicated any objection to the waiver
[at trial].”). See also Ramage v. State, 314 Ga. App. 651, 654 (725 SE2d 791)
(2012) (reciting as evidence pertinent to a determination of acquiescence that
Ramage’s trial counsel testified at the motion for new trial hearing that “every
time the lawyer consented to the judge meeting privately with the jurors, the
lawyer recalled counseling Ramage at the defense table with respect to at least
some of the communications between the judge and the jury”).
26
defendant’s right to be present was violated is normally raised in a
motion for new trial, which allows the parties to supplement the
trial record at the hearing on the motion by calling the defendant’s
trial counsel, or other witnesses, to testify about what the defendant
was told about the proceeding from which he was absent or by
presenting other evidence about what the defendant could see and
hear during the trial. That did not occur in this case, because
Appellant raised his right-to-be-present claim for the first time on
appeal.
In at least one case where such a claim was raised first on
appeal, we have reviewed the existing record and concluded that it
showed enough about what the defendant could see and hear for us
to comfortably construe his failure to timely complain about his
absence as acquiescence. See Zamora, 291 Ga. at 519-520 (finding
acquiescence from a combination of the trial and motion-for-new-
trial record, while noting that the defendant might have learned the
subject of the bench conferences at issue “earlier from conversations
with his trial counsel”). This Court appears never to have directly
27
addressed, however, whether that is the proper practice in this
situation. Upon reflection, we conclude for several reasons that
when a defendant raises a right-to-be-present claim for the first time
on appeal, unless that claim can be easily rejected based on the
existing record, the case should be remanded to the trial court for a
hearing at which the parties have an opportunity to supplement the
record with relevant evidence and after which the trial court may
make factual findings and issue an order ruling on the claim, which
may then be reviewed in a subsequent appeal.
First, as noted previously, acquiescence is a fact-specific issue
that turns on how to interpret a defendant’s silence after his absence
from a proceeding. Trial judges are generally better situated than
appellate courts to make such inferences in the first instance,
particularly in a context where the trial judge’s own practices,
procedures, and observations of what occurred during the trial may
be pertinent. Second, we should not lightly assume that defense
counsel allowed his client’s constitutional right to be present to be
violated without the client’s consent; rather, we would normally
28
expect that if bench conferences or other proceedings to which the
right applies happened without the defendant’s presence, counsel
advised the defendant of his right to be present and of what occurred
to ensure that the defendant acquiesced to his absence. See, e.g.,
Parks v. State, 275 Ga. 320, 325 (565 SE2d 447) (2002) (“Parks’s
attorney was present at all of [the challenged bench] conferences,
had the opportunity to discuss each conference with Parks, and, in
fact, stated that he was going to discuss the conferences with
Parks.”).9
Third, and relatedly, it would promote gamesmanship and
create ethical concerns if defense counsel – having realized that the
defendant did not participate in a bench conference or other
9 To be clear, given Justice McMillian’s special concurrence, we are not
holding today that there is in this context a presumption that defense counsel
ensured their clients’ acquiescence to violations of the right to be present,
which (if unrebutted) could be relied on without more to prove such
acquiescence. But we also should not presume that defense counsel performed
their professional duties deficiently by allowing their clients’ constitutional
rights to be violated, even if they did not make as clear a record of their clients’
waiver or acquiescence as they perhaps should. We believe that defense
counsel in general perform more competently than the special concurrence
suggests, so there is value in remanding to allow a record of their interactions
with their clients to be created and the truth of the matter to be determined by
actual evidence rather than presumptions.
29
proceeding at which he had a right to be present and that the trial
transcript would not show acquiescence, even though a fuller record
could or would show acquiescence – could secure reversal of a
conviction by not raising the issue until appeal, depriving the State
of the opportunity to create that fuller and more truthful record. The
potential for gamesmanship in this context would be particularly
high, because under current Georgia law, 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 his convictions must be reversed.10 That is so even
10 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. See Rushen v. Spain, 464 U.S. 114, 117-120 (104 SCt
453, 78 LE2d 267) (1983) (per curiam). And it appears that most – but not all
– states that have addressed violations of the right to be present under their
respective state constitutions have likewise held that a violation is generally
subject to harmless-error review. See, e.g., State v. Clary, 270 P3d 88, 91-92
(Mont. 2012) (holding that a violation of the right to be present under the
Montana Constitution is presumed harmful but subject to harmless-error
review, unless the violation constituted a “structural defect,” in which case the
presumption of harm is conclusive); State v. Brown, 552 SE2d 390, 398 (W. Va.
2001) (explaining that an unwaived violation of the right to be present under
West Virginia law is subject to harmless-error review). New York’s highest
court has held that the absence of the defendant during a material stage of his
30
trial “presents an error of law mandating reversal even in the absence of
objection, and that an inquiry into prejudice is inappropriate,” People v. Cain,
556 NE2d 141, 143 (N.Y. 1990) (citations omitted), but also has held that a
trial court’s questioning of a juror in chambers without the defendant present
was not a material part of the trial, see People v. Mullen, 374 NE2d 369, 370-
371 (N.Y. 1978).
For more than a century before Georgia’s current Constitution was
ratified in 1982, and for more than a decade thereafter, this Court and the
Georgia Court of Appeals were inconsistent in our treatment of the
“presumption” of prejudice flowing from various types of violations of the right
to be present under our State’s Constitution, with most of the cases on one side
failing to acknowledge, much less distinguish legally or factually, the other line
of cases. In many cases, our appellate courts treated the presumption of harm
as conclusive, sometimes with an explanation and other times by just
summarily reversing convictions after holding that the right to be present was
violated. See, e.g., Wade, 12 Ga. at 29 (rejecting the contention that the
defendant was not “injured” by a violation of his right to be present simply
because “it was the legal right and privilege of the defendant” to be present and
he had not waived his right (emphasis in original)); Hopson v. State, 116 Ga.
90, 92 (42 SE 412) (1902) (“To say that no injury results when it appears that
what occurred in [the defendant’s and his counsel’s] absence was regular and
legal would, in effect, practically do away with this great and important right,
one element of which is to see to it that what does take place is in accord with
good law and good practice.”); Rider v. State, 195 Ga. 656, 660 (25 SE2d 304)
(1943) (holding that “where the defendant is absent without knowledge of such
a [jury] charge or recharge, and without any consent or waiver with reference
thereto, it has been held that such procedure requires a new trial,” regardless
of whether what occurred in the defendant’s absence was “‘regular and legal’”
(quoting Hopson)); Seay v. State, 111 Ga. App. 22, 24 (140 SE2d 283) (1965)
(holding that a colloquy between the judge and the jury in the defendant’s
absence without a waiver was reversible error, “even though nothing erroneous
occurred therein”); Fictum v. State, 188 Ga. App. 348, 349 (373 SE2d 54) (1988)
(deciding that a violation of a defendant’s right to be present during jury
selection required reversal where he had not waived his right, without
analyzing harm).
In numerous other cases during the same period, however, our appellate
courts treated a violation of the right to be present as subject to harmless-error
analysis (or, put another way, as subject to rebuttal by the State of a
presumption of prejudice). See, e.g., Smith v. State, 59 Ga. 513, 514-515 (1877)
31
(concluding that reversal was not required when the trial court received the
jury’s verdict in the defendant’s absence, because his absence “was merely an
irregularity” and “no matter of substance was involved”); Miller v. State, 13
Ga. App. 440, 444 (79 SE 232) (1913) (“In considering the right of the accused
to be present at every stage of the trial, and to have his counsel present, we
must not lose sight of the further principle, equally well established, that a
new trial will not be granted on account of an error which manifestly caused
no injury to the accused. . . . To warrant such action by a reviewing court, it
must be manifest that the error was prejudicial in character.”); Williams v.
State, 150 Ga. 641, 644 (104 SE 776) (1920) (“It is certainly an important right
of the accused in a criminal case, where his life and liberty are involved, to be
present at all stages of the trial; but this cannot mean that, if anything at all
is done in his absence, a new trial is required.”); Thacker v. State, 226 Ga. 170,
181 (173 SE2d 186) (1970) (citing Miller in holding that a violation of the right
to be present was at most a “harmless irregularity”), vacated in part on other
grounds, 408 U.S. 936 (92 SCt 2861, 33 LE2d 753) (1972); Watkins v. State, 237
Ga. 678, 681-682 (229 SE2d 465) (1976) (concluding a violation of a defendant’s
right to be present was harmless error); Logan v. State, 266 Ga. 566, 567 (468
SE2d 755) (1996) (holding that the trial court’s communication with the jury
outside of the defendant’s presence was harmless error); Hanifa v. State, 269
Ga. 797, 807 (505 SE2d 731) (1998) (stating that “‘[u]nquestionably the trial
judge should not in any manner communicate with the jury about the case, in
the absence of the accused and his counsel, pending the trial[,]”’ and “‘unless
the character of the communication clearly shows that it could not have been
prejudicial to the accused, the presumption of law would be that it was
prejudicial’” (quoting Miller)).
By the late 1990’s, Georgia courts began saying more consistently and
squarely that violations of the Georgia Constitution’s right to be present are
not subject to harmless-error analysis, albeit again usually ignoring the
precedents to the contrary. See, e.g., Goodroe v. State, 224 Ga. App. 378, 380-
381 (480 SE2d 378) (1997) (“[T]he Georgia Supreme Court has refused to apply
a harmless error analysis to a criminal defendant’s right to be present at a
critical stage of the trial pursuant to . . . the Georgia Constitution.”); Holsey v.
State, 271 Ga. 856, 860 (524 SE2d 473) (1999) (“This Court has consistently
considered the defendant’s absence for a critical part of the trial as a defect not
subject to harmless error analysis.”); Smith v. State, 284 Ga. 599, 608-609 (669
SE2d 98) (2008) (“Georgia law treats the right to be present differently [than
federal constitutional law]. Under our existing case law, which neither side has
asked us to revisit here, denial of the right to be present guaranteed by the
32
when, as in this case, the defendant rather obviously could not
establish any actual prejudice. 11 We should at least be confident that
Georgia Constitution is not subject to harmless error review on direct appeal.
Instead, a violation is presumed to be prejudicial. Thus, absent a valid waiver,
violation of the right to be present triggers reversal and remand for a new trial
whenever the issue is properly raised on direct appeal.” (footnotes omitted));
Ward, 288 Ga. at 646-647 (“This Court has consistently ruled that the ‘denial
of the right to be present guaranteed by the Georgia Constitution is not subject
to harmless error review on direct appeal.’” (quoting Smith)); Howard, 307 Ga.
at 21 (“’If not waived by the defendant, a direct violation of the right to be
present is presumed prejudicial and requires a new trial.’” (citation omitted)).
Yet even in the past two decades, there has been some inconsistency, as
this Court and the Court of Appeals have continued to treat one type of right-
to-be-present violation – communications between trial courts and jurors
without the defendant present – as subject to a rebuttable presumption of
prejudice. See, e.g., Carter v. State, 273 Ga. 428, 429-430 (541 SE2d 366) (2001)
(reversing under the Hanifa test because “[t]he character of the communication
in the present case does not show that it could not have been prejudicial to
Carter”); Fuller v. State, 277 Ga. 505, 506 (591 SE2d 782) (2004) (quoting
Hanifa and concluding that one of two communications was not “innocuous”);
Reid v. State, 319 Ga. App. 782, 784-785 (738 SE2d 624) (2013) (“[E]ven if the
trial court erred when it communicated with the jury outside the presence of
Reid and his counsel, the error was harmless because Reid has not shown that
the trial court’s response hastened the verdict or caused a juror to yield his or
her convictions.”).
It is not clear why Georgia law should be an outlier on this issue, why
this State’s case law developed as it did, or whether the automatic-reversal
position on which we seem to have settled (for the most part) fairly recently is
the correct rule for all cases, for certain categories of cases, or for no cases. We
would be amenable to reconsidering our recent holdings in a case in which the
issue is fully briefed; the parties have not done so in this case thus far, but we
do not foreclose their doing so on remand or in a subsequent appeal.
11 The bench conferences at issue here all concerned removal of
prospective jurors for cause or hardship. With or without Appellant’s
participation in the bench conferences, even if the trial court erred in removing
all of those prospective jurors, the errors would be deemed harmless, because
33
before we order a new trial in a criminal case, an actual,
unrelinquished violation of the right to be present occurred, by
allowing the State an opportunity to develop a full record on the
issue. 12
Notably, and commendably, Appellant’s counsel here
acknowledges that a remand would be appropriate to develop the
record on the issue of acquiescence. And notably, when faced with a
similar situation, the Court of Appeals remanded the case to the
trial court “with direction to conduct a hearing, giving both sides
adequate opportunity to address the issue of acquiescence.” Russell
Appellant makes no claim that the 12 jurors who ultimately tried his case were
in any way biased or incompetent. See Trim v. Shepard, 300 Ga. 176, 179 (794
SE2d 114) (2016) (“[E]ven if a trial court abused its discretion in striking a
prospective juror for cause, ‘the erroneous allowing of a challenge for cause
[ordinarily] affords no ground of complaint if a competent and unbiased jury is
finally selected.’” (citation omitted)). See also Wells v. State, 261 Ga. 282, 282
(404 SE2d 106) (1991) (“A party to a lawsuit has no vested interest in having
any particular juror to serve; he is entitled only to a legal and impartial jury.”
(citation and punctuation omitted)).
12 During the first bench conference related to Juror Q.P., Appellant’s
trial counsel mentioned Appellant’s writing down the names of prospective
jurors whom he knew, suggesting some interaction between Appellant and his
counsel during the jury selection process; there also would have been
opportunities throughout the process, including during the 26-minute recess
before the silent strikes, for them to discuss the bench conferences and what
had occurred during them. Whether and what discussions actually occurred is,
of course, a key matter to be determined on remand.
34
v. State, 230 Ga. App. 546, 548 (497 SE2d 36) (1998). Cf. Ramage,
314 Ga. App. at 653-655 (remanding for the trial court to “find the
pertinent facts and then to apply the correct legal standard to
resolve the question of [Ramage’s] waiver [of his right to be
present],” where the trial transcript was silent on the issue and the
other evidence in the record was conflicting and ambiguous).
For these reasons, although we affirm the sufficiency of the
evidence supporting Appellant’s convictions, we vacate the trial
court’s judgment in part and remand the case to that court to hold a
hearing at which Appellant may raise his right-to-be-present claim
and the parties may present evidence and argument on the claim,
after which the court shall enter an order ruling on the claim, which
may then be appealed to this Court.
Judgment affirmed in part and vacated in part, and case
remanded with direction. All the Justices concur, except McMillian,
J., who concurs specially in Division 2 (c).
35
MCMILLIAN, Justice, concurring specially.
Although I agree that the trial court’s judgment must be
vacated in part and remanded to permit the parties to develop the
record on Champ’s right-to-be-present claim, which was raised for
the first time on appeal, I disagree with one of the reasons posited
by the majority for remand: that we “normally expect that if bench
conferences or other proceedings to which the right applies
happened without the defendant’s presence, counsel advised the
defendant of his right to be present and of what occurred to ensure
that the defendant acquiesced in his absence.”
First, when remand is required for further factual
development, this Court does not generally tell the parties and the
trial court what it expects to find. Indeed, notwithstanding the
majority’s stated expectations, it is not uncommon that when raised,
a criminal defendant’s constitutional right to be present is found to
be violated such that a new trial is required. See, e.g., Sammons v.
State, 279 Ga. 386, 388 (2) (612 SE2d 785) (2005) (after juror was
36
removed without defendant’s consent or acquiescence and defendant
objected to the dismissal, counsel said he would discuss it with her
but did not); Pennie v. State, 271 Ga. 419, 422 (2) (520 SE2d 448)
(1999) (defense counsel may not waive client’s right to be present
after trial illegally proceeded in defendant’s absence); Brooks v.
State, 271 Ga. 456, 457 (2) (519 SE2d 907) (1999) (Georgia appellate
courts “have reversed numerous cases based upon the defendant’s
absence”); Gillespie v. State, 333 Ga. App. 565, 568 (1) (a) (774 SE2d
255) (2015) (trial counsel testified that defendant was not present at
bench conferences; he did not believe he told his client of the right
to be present; never specifically thought about or researched his
client’s right to be present; could not recall ever advising a client of
the right to be present; and could not recall telling defendant what
occurred at bench conferences). We analyze whether a defendant has
waived his right to be present precisely because we cannot assume
that he acquiesced, so it would be counterproductive to assume that
counsel facilitated a defendant’s acquiescence.
Second, careful counsel may choose to put on the record in open
37
court what occurred at a bench conference not attended by the
defendant or make clear whether the defendant was waiving his
right to be present at bench conferences. See, e.g., Heath v. State,
349 Ga. App. 84, 91 (3) (825 SE2d 474) (2019) (“Third, Heath’s
counsel explicitly put on the record [in open court] that ‘at the
conference [they] had agreed to strike for cause jurors number 3 and
10.’”); Ramirez v. State, 345 Ga. App. 611, 616 (2) (814 SE2d 751)
(2018) (defense counsel stated on the record that he explained the
right to be present and that his client agreed to discussing the
content of the bench conferences at counsel’s table); Johnson v.
State, 347 Ga. App. 831, 839 (1) (b) (821 SE2d 76) (2018) (defense
counsel stated on the record that defendant did not waive his right
to be present by not being present at bench conferences); Williamson
v. State, 207 Ga. App. 565, 566 (1) (428 SE2d 628) (1993) (defense
counsel announced on the record that defendant waived his right to
be present). And in the interest of avoiding a re-trial, we have
encouraged the trial court and prosecutors to put on the record what
occurred at bench conferences or confirm that the defendant waived
38
the right to be present. See Sammons, 279 Ga. at 388 (2) n.12
(“Prosecutors are reminded that they share the duty to ensure a fair
trial and that if proceedings take place outside the presence of the
defendant, the State may alert the trial court of the need to allow
the defendant time to discuss the issue with counsel and to permit
defendant to place an express waiver on the record.”). See also Allen
v. State, 297 Ga. 702, 705 (4) (777 SE2d 680) (2015) (trial court noted
on the record that defense counsel explained what was being said at
bench conferences and that defendant waived the right to be
present).
Notably, Champ was represented during the hearing on the
motion for new trial by two successive attorneys, neither of whom
brought up Champ’s right to be present at bench conferences. Thus,
the silence of the record on whether Champ was advised of his right
to be present suggests the opposite of the majority’s reasoning—that
no one was focusing on that issue until current appellate counsel
raised it—rather than supporting a “normal” expectation that
defense counsel advised his client of his right. In any event, we
39
should not assume that Champ’s trial and motion-for-new-trial
counsel were aware of courtroom interactions that support
acquiescence or that they were heedless of his right to be present.
Instead, as the majority aptly explains: “there is value in remanding
to allow a record of their interactions with their clients to be created
and the truth of the matter to be determined by actual evidence
rather than presumptions.” 13
Although I am unconvinced that remand is supported by this
assumption, I am persuaded by the other two reasons that the
majority relies upon. The majority first points out that whether a
defendant has waived his or her right to be present is fact-specific,
and because trial judges are in a better position to assess facts in the
first instance than we are, supplementing the record in the trial
court will better inform our analysis. I also agree that if we allow
right-to-be present claims to be raised for the first time on appeal
13I agree with the majority that the Court is not presuming on a silent
record that defense counsel obtained his client’s acquiescence, notwithstanding
the majority’s somewhat contradictory statements about its expectations of
defense counsel in this context.
40
without a remand for development of the record, there is a potential
for gamesmanship by unethical defense counsel, who could
purposely inject reversible error into the trial in the event that there
is a conviction. In my view, these reasons, along with the concession
by both Champ and the State that remand would be appropriate
here, are sufficient to support a remand.
Finally, and on a separate issue, I question the necessity of
footnote 10. As explained by the majority, “under current Georgia
law, 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 his convictions must be
reversed.” I agree with this and also with the acknowledgement that
Georgia is an outlier among state and federal courts on this issue,
where other jurisdictions generally apply a harmless-error review.
But no party has asked us to revisit the presumption of prejudice in
right-to-be-present claims. Thus, even though the balance of the
footnote, with its long string cites to inconsistent Georgia cases on
this issue, is academically interesting and may be helpful to future
41
litigants who want to challenge the presumption, at the end of the
day, it is only dicta, so I would not include it in the majority opinion.
For these reasons, I concur in the judgment only in Division 2
(c) of the majority opinion.
42