Estrada v. the State , 332 Ga. App. 359 ( 2015 )

THIRD DIVISION
ELLINGTON, P. J.,
DILLARD and MCFADDEN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules/
May 14, 2015
In the Court of Appeals of Georgia
A15A0325. ESTRADA v. THE STATE.
MCFADDEN, Judge.
Hugo Estrada was indicted for one count of armed robbery. After a jury trial,
Estrada was convicted of the lesser-included offense of robbery. Estrada now appeals
the conviction. He argues that he had a right under the Georgia constitution to be
present during a particular interaction between the trial court and the jury and that the
violation of this right warrants a reversal of his conviction. We find that Estrada
waived this issue and therefore affirm.
After the closing arguments in Estrada’s jury trial, the trial court instructed the
jury on, among other things, the need for unanimity and the option of convicting
Estrada of robbery as a lesser-included offense of armed robbery. An hour and forty-
five minutes after beginning deliberations, the jurors sent written questions to the
court. The court, the prosecutor, and defense counsel entered the jury room to
respond. Although the communication was not transcribed, afterwards the trial court
made a record of what had occurred. According to the trial court, the court
along with the attorneys for both the [s]tate and the accused went to the
jury room to respond to the note . . . [t]hat basically had to do with the
question of the verdict being unanimous and how to deal with the
question of the lesser-included offense. The [c]ourt explained that the
verdict had to be unanimous and that [the jurors] . . . can consider . . . a
lesser-included offense if they feel it is appropriate. After giving an
explanation as to how a lesser-included offense [was] to be considered,
both counsel were satisfied as to the [c]ourt’s explanation of that.
After making this record, the trial court asked the prosecutor and defense
counsel if they had “[a]ny questions or objections or exceptions as to what [the trial
court] said to the jury in the jury room.” In response, defense counsel replied, “No,
sir, none.”
Estrada argues that the trial court violated his right to be present when the court
answered the jury’s questions in his absence. See Morris v. State, 257 Ga. 781, 784
(4) (364 SE2d 571) (1988) (“[A]ny answers to . . . questions [from the jury related to
their decision process] must be given in open court with the accused and his counsel
present.”). A violation of the defendant’s right under the Georgia constitution to be
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present at critical stages of the proceedings is presumed to be prejudicial; violating
this right warrants a “reversal and remand for a new trial whenever the issue is
properly raised on direct appeal.” Peterson v. State, 284 Ga. 275, 279 (663 SE 2d
164) (2008) (citations omitted). However, a defendant may waive that right. Id.Estrada does not dispute that he was present in the courtroom when, after the
jury room visit,
a summary of the communication[] was placed on the record by the trial
judge and agreed to by the prosecuting attorney and defense counsel.
[B]ut there is no indication on the record that [Estrada] objected himself
or sought to have his trial counsel object on his behalf. . . . [Estrada] had
opportunities to discuss [the jury room] visit[] with counsel after the fact
and assert any objections he had, but the record is silent in that regard.
We conclude, therefore, . . . that any objection to the communication
with the jury . . . was waived.
Fuller v. State, 277 Ga. 505, 506-507 (2) (591 SE2d 782) (2004). Consequently,
Estrada has not shown that he is entitled to reversal and we affirm his conviction.
Judgment affirmed. Ellington, P. J., and Dillard, J., concur.
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