Shaun Bland v. State ( 2022 )

FIFTH DIVISION
RICKMAN, C. J.,
McFADDEN, P. J., and SENIOR APPELLATE JUDGE PHIPPS
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.
https://www.gaappeals.us/rules
DEADLINES ARE NO LONGER TOLLED IN THIS
COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
March 11, 2022
In the Court of Appeals of Georgia
A21A1547. BLAND v. THE STATE.
MCFADDEN, Presiding Judge.
Shaun Bland was charged by indictment with five counts of aggravated child
molestation, two counts of child molestation, and one count of enticing a child for
indecent purposes. He was tried before a jury, which found him guilty of all the
charged offenses. The trial court imposed life sentences for the aggravated child
molestation offenses, 20-year sentences for the child molestation offenses, and a 30-
year sentence for the enticement offense, with all of the sentences to run concurrently.
Bland filed a motion for new trial, which the trial court denied.
Bland appeals from the denial of his motion for new trial, challenging, among
other things, the sufficiency of the evidence supporting the verdict and the trial
court’s continuance of the trial in Bland’s absence. While there was sufficient
evidence to support the jury’s verdict, the trial court erred in proceeding with critical
stages of the trial in Bland’s absence. We therefore reverse the judgment and remand
the case for a new trial.
1. Sufficiency of the evidence.
On appeal from a criminal conviction, “[w]e do not weigh the evidence or
judge the credibility of witnesses, but determine only whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Stodghill
v. State, 351 Ga. App. 744, 744-745 (1) (832 SE2d 891) (2019) (citation and
punctuation omitted). So viewed, the state presented evidence showing that Bland had
sexually abused his two minor stepdaughters, K. M. and A. C. At trial, K. M. testified
that Bland had engaged in oral sodomy and other sexual acts with her on multiple
occasions and that she had once seen him engage in oral sodomy with A. C. The state
also presented evidence of K. M.’s outcry to her mother about the alleged abuse and
K. M.’s videotaped forensic interview describing the abuse.
In challenging the sufficiency of the evidence, Bland does not point to
deficiencies regarding specific elements of the charged offenses. Rather, he makes the
general argument that “there was testimony from only one witness and no physical
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evidence to support the witness’ testimony.” Contrary to Bland’s argument, there
were actually seven witnesses for the state and he has not identified which particular
witness he is referencing. Nevertheless, we presume that he is referring to K. M.’s
testimony describing the alleged sexual abuse. Bland’s argument, however, is without
merit since “[t]he testimony of a single witness is generally sufficient to establish a
fact.” OCGA § 24-14-8. Indeed, “the victim’s testimony alone is generally sufficient
to establish the elements of child molestation. Thus, Georgia law does not require
corroboration of a child molestation victim’s testimony.” Carter v. State, 320 Ga.
App. 454, 455 (1) (740 SE2d 195) (2013) (citation and punctuation omitted). So
“[t]he testimony of [K. M.] alone supports [Bland’s] convictions, despite the absence
of any physical evidence.” Barnes v. State, 299 Ga. App. 253, 254 (1) (682 SE2d 359)
(2009) (footnote and punctuation omitted).
2. Right to be present at trial.
Bland asserts that the trial court denied his right to be present at critical stages
of his criminal trial. We agree.
The record shows that after the state had presented its evidence and rested,
Bland presented several defense witnesses and then began to testify in his own
defense. But before Bland addressed the specific allegations of abuse in this case, the
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trial court interrupted his testimony and indicated that the trial would resume the
following day. The next morning, which was a Friday, Bland did not appear in court
and his counsel informed the judge that Bland was hospitalized with injuries
sustained after he had jumped from a vehicle while on the way to the courthouse. The
judge immediately revoked Bland’s bond, announced that he was under arrest, and
directed the sheriff’s department to monitor his hospital room. The judge recessed the
case until the following Monday morning, indicating that the options at that point
would be to proceed with the trial in Bland’s absence, continue the case, or declare
a mistrial.
After having released the jury for the weekend, the judge brought two of the
jurors back into the courtroom and questioned them about whether returning on
Monday would be a hardship. The judge then excused one of the jurors and told the
other juror that she would also be excused if should could not change a scheduled
flight. The judge next called an alternate juror into the courtroom and questioned him
about a conversation he had engaged in with the district attorney and a detective
outside the courtroom. The alternate juror stated that he was impartial between the
state and the accused, neither counsel for the state nor defense asked him any
questions, and the judge directed that the alternate should return to court on Monday.
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That following Monday, Bland’s attorney told the court that Bland was still at
the hospital and that after he was physically cleared he would be monitored for 72
hours for psychological evaluation. Defense counsel told the court that Bland wished
to be present at trial and he submitted a video-recorded statement from Bland
informing the court that he still wanted to be heard at trial and that his testimony was
crucial to his case. Bland’s counsel moved for a continuance of the case and for a
mistrial. The state opposed the defense motions and requested that the trial continue
without Bland, citing Hunter v. State, 263 Ga. App. 747 (589 SE2d 306) (2003) for
the proposition that Bland had waived his right to be present at trial. The trial court
accepted the state’s position and ruled that pursuant to Hunter the trial would
continue without Bland because he was voluntarily absent based on having jumped
from a vehicle.
Thereafter, the judge announced that the juror who had been questioned about
her flight the previous Friday had not appeared in court, so the judge excused her
from further service on the jury. Although it is not expressly shown by the transcript,
apparently the judge replaced that juror and the previously dismissed juror with
alternate jurors, because he then called 12 jurors into the courtroom individually to
give them each instructions about Bland’s absence from the trial. The court then
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called the entire jury into the courtroom and announced that the trial would proceed.
Upon inquiries from the judge, Bland’s attorney stated that the defense rested and the
state offered no rebuttal evidence.
The attorneys for both sides then gave their closing arguments; the court gave
the final charge to the jury; the jurors began deliberations, during which they asked
to view a portion of Bland’s recorded in-custody statement; the court, without
objection, allowed the jury to return to the courtroom and re-watch a seven-minute
segment of Bland’s in-custody statement; approximately 30 minutes later the jury
returned its guilty verdict; the jurors were polled by the court and then excused; the
judge announced that the sentencing hearing would be held at a later date; and the
proceedings were concluded. Approximately four weeks later, Bland appeared in
court for his sentencing hearing.
Embodied within the [Georgia] constitutional right to the courts,
see Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983, is a
criminal defendant’s right to be present and see and hear, all the
proceedings against him on the trial before the [c]ourt. This is a
fundamental right and a foundational aspect of due process law. This
right has been interpreted to attach at any stage of a criminal proceeding
that is critical to its outcome if the defendant’s presence would
contribute to the fairness of the procedure. This [c]ourt has determined
that a critical stage in a criminal prosecution is one in which a
defendant’s rights may be lost, defenses waived, privileges claimed or
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waived, or one in which the outcome of the case is substantially affected
in some other way.
Williams v. State, 307 Ga. 689, 695 (4) (b) (838 SE2d 314) (2020) (citations and
punctuation omitted). “[A] denial of the right to be present guaranteed by the Georgia
Constitution is not [subject to harmless error review]. It is presumed to be prejudicial.
Thus, absent a valid waiver by defendant, a violation of the right to be present
enshrined in the Georgia Constitution triggers reversal and remand for a new trial.”
Cesari v. State, 334 Ga. App. 605, 608-609 (1) (780 SE2d 56) (2015) (citation and
punctuation omitted).
In the instant case, Bland was absent from multiple critical stages of his trial
as recounted above. Those critical stages included the judge’s colloquies with two
jurors and dismissal of one of those jurors, and the judge’s colloquy with an alternate
juror about his impartiality, all of which occurred before the judge actually ruled that
Bland had waived his right to be present. See Gobert v. State, 311 Ga. 305, 310 (2)
(857 SE2d 647) (2021) (proceeding at which the jury composition is changed is a
critical stage at which the defendant is entitled to be present); Brewner v. State, 302
Ga. 6, 11 (II) (804 SE2d 94) (2017) (defendant has the right to be present during a
colloquy between the trial judge and a juror). Other critical stages of the trial which
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were held in Bland’s absence included the court’s dismissal of a second juror and
apparent replacement of the two dismissed jurors with alternate jurors, see Gobert,
supra (changing composition of the jury a critical stage); the court’s various
colloquies with and instructions to individual jurors, see Brewner, supra (trial court’s
colloquy with juror a critical stage); the closing arguments of the attorneys, see Tyner
v. State, 334 Ga. App. 890, 895 (1) (780 SE2d 494) (2015) (closing argument is a
critical stage of a trial); and the return of the verdict, see Tyner, supra (receiving jury
verdict is a critical stage of a trial).
The state argues that the trial court properly relied upon Hunter, supra, to find
that Bland had waived his right to be present at those critical stages of his trial. But
the instant case is materially different from, and not controlled by, Hunter. In that
case, this court found that a defendant who had left court during a break in his trial
and attempted to commit suicide by slitting his wrists was “thereafter voluntarily
absent from the proceeding, [and thus] waived his right to be present at the remainder
of the trial.” Hunter, supra at 748 (1) (citation and punctuation omitted).
As an initial matter, we note that because of the material differences between
the current case and Hunter, we need not address the question of whether it was
appropriate for this court to have determined, without reference to any expert
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testimony on the matter, that an attempted suicide constituted a voluntary waiver of
the right to be present at trial. The state attempts to analogize the instant case to
Hunter by referring to Bland’s attempted suicide; but there is no evidence that
Bland’s act of jumping from the vehicle was an attempted suicide. There was no
evidence presented to the trial court as to any circumstances surrounding the incident;
there was no evidence explaining why he jumped; and there was no testimony from
Bland, as there was from the accused in Hunter, stating that he wanted to commit
suicide. Given the lack of evidence, the state’s characterization of the incident is mere
speculation and distinguishes it from Hunter.
Moreover, Bland expressly informed the court in his recorded statement that
he wanted to return to the trial. So unlike Hunter, the judge in this case had a clear
statement from the accused that he was not voluntarily waiving his right to be present
for the remainder of the trial. Furthermore, Bland indicated in his recorded statement
that he wanted to finish his trial testimony that had been interrupted by the court. So
the continuance of the trial without Bland deprived him of his right to testify. See
Danenberg v. State, 291 Ga. 439, 442 (5) (729 SE2d 315) (2012) (“The right to testify
on one’s own behalf in defense to a criminal charge is a fundamental constitutional
right[.]”) (citation and punctuation omitted).
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Given these critical differences between the instant case and Hunter, and
pretermitting the question of whether that prior case was correctly decided, we
conclude that the trial court erred in relying on Hunter to find that Bland had
voluntarily waived his right to be present at his criminal trial. “Because [Bland] was
absent from . . . critical part[s] of his trial and [there is no evidence of a] waiver [of
his right to be present, and instead] he made known that he [wanted] to return to court
[and finish his trial testimony], the judgment must be reversed and the case remanded
for a new trial.” Cesari, supra at 610 (1) (defendant who voluntarily absented himself
from courtroom later reclaimed his right to be present).
3. Remaining enumerations of error.
As a result of our decision above in Division 2, we need not address Bland’s
remaining claims of error.
Judgment reversed and case remanded. Rickman, C. J., and Senior Appellate
Judge Herbert E. Phipps concur.
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