Thomas v. State

359 Ga.App. 861

860 S.E.2d 150

THOMAS

v.The STATE.

A21A0492

Court of Appeals of Georgia.

June 17, 2021

Cara Clark, for Appellant.

Fani T. Willis, Paul Howard, Atlanta, David K. Getachew-Smith, for Appellee.

Miller, Presiding Judge.

This is the second appearance of Nyron Thomas's case before this Court. A jury convicted Nyron Thomas of aggravated assault with a deadly weapon ( OCGA § 16-5-21 ), possession of a firearm during commission of a felony ( OCGA § 16-11-106 ), and possession of a firearm by a convicted felon ( OCGA § 16-11-131 ). State v. Thomas , 350 Ga. App. 763, 830 S.E.2d 296 (2019). Thomas appeals from the trial court's denial of his motion for new trial, arguing that the trial court failed to ensure that he was present during several bench conferences which were critical stages of the proceeding. For the reasons that follow, we conclude that Thomas is not entitled to a new trial on this ground and therefore affirm Thomas's convictions and sentence.

In the previous appeal, we summarized the facts as follows:

The record shows that the charges against Thomas arose from an altercation between Thomas and [Shinnara] Gee on October 9, 2014. The two men began arguing, and at some point during the encounter, Thomas's gun discharged. Thomas then chased Gee around a corner and fired his weapon again, but the second shot did not make contact with Gee. The medical examiner testified that Gee was shot only once, and the fatal shot entered Gee's arm and ricocheted into his torso. Gee died from the injuries he sustained to his internal organs when the bullet lodged in his abdominal cavity. Thomas testified in his own defense at trial and claimed he did not intend to shoot Gee. He raised the affirmative defenses of self-defense, accident, and justification.

Thomas was charged by indictment for murder, two counts of felony murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Specifically, the indictment alleged that Thomas assaulted Gee "by shooting him with a handgun, the same being a deadly weapon." See OCGA § 16-5-21 (a) (2) ("A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon ....").

The jury returned a verdict finding Thomas not guilty of murder, felony murder, and the lesser included offense of voluntary manslaughter. The jury found Thomas guilty of aggravated assault with a deadly weapon, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. The trial court sentenced Thomas to twenty years to serve for aggravated assault (Count 4); five years to serve for possession of a firearm during the commission of a felony (consecutive to Count 4); and five years to serve for possession of a firearm by a convicted felon (consecutive to Count 4 and suspended).

In his amended motion for a new trial, Thomas asserted error in the trial court's failure to limit its jury instruction on aggravated assault with a deadly weapon to the method charged in the indictment. The trial court agreed that its charge was erroneous and granted a new trial on this basis.

Id. at 764, 830 S.E.2d 296.

In the previous appeal, the State argued that the trial court erred in granting Thomas a new trial based on an erroneous jury charge. Id. at 765 (1), 830 S.E.2d 296. We concluded that the trial court erred in that regard, and we reversed the trial court's order and remanded the case for the trial court to consider the remaining grounds asserted in Thomas's motion for new trial. Id. at 768 (2), 830 S.E.2d 296. On remand, the trial court entered an order denying Thomas's motion for new trial as to the other grounds in his motion. He then filed this appeal.

In his sole enumeration of error, Thomas contends that his constitutional rights were violated because he was excluded from bench conferences in three instances: (1) during jury selection, when the trial court and his trial counsel spoke about excusing a juror; (2) during the first day of trial, when the trial court sustained his trial counsel's objection to the State's attempt to introduce still images from a surveillance video; and (3) during the second day of trial, when the trial court told the State that it could not introduce evidence of a lineup because Thomas's identity as the shooter was not in dispute.¹ We disagree and conclude that the trial court did not violate Thomas's constitutional rights.

Embodied within the constitutional right to the courts is a criminal defendant's right to be present and see and hear all the proceedings which are had against him on the trial before the Court. Violations of this due process right are presumed prejudicial, and, absent a waiver by the defendant, require a new trial.... The right to be present attaches 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. Thus, a "critical stage" of a criminal proceeding is defined as one in which the defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way. Proceedings during which the jury is selected or modified, for example, are a critical stage at which the right to be present attaches.

(Citations and punctuation omitted.) Brewner v. State , 302 Ga. 6, 9-10 (II), 804 S.E.2d 94 (2017).

Thomas does not appear to have raised these claims before the trial court, as neither his motion for new trial nor his amended motion for new trial raises this issue, the trial court's post-remand order denying Thomas's motion for new trial on all remaining grounds does not address it, and the record does not include a transcript of the post-remand hearing. As discussed more fully below, the resolution of a right-to-be-present claim requires a fact-intensive inquiry as to whether the defendant acquiesced to his absence, which typically must be determined by the trial court before it can be reviewed by an appellate court. See Champ v. State , 310 Ga. 832 (2) (c), 854 S.E.2d 706 (2021). However, when a defendant raises a right-to-be-present claim that "can be easily rejected based on the existing record," the appellate court may address it for the first time on appeal. Id. In this case, Thomas's claims can be easily decided based on the record, so we will address them here.

1. First, as to the bench conference during jury selection, the transcript reveals that when the trial court asked prospective jurors to indicate whether they believed their service as a juror might be affected by their experience with a close friend or family member's conviction of a crime, Juror No. 4 responded in the affirmative. The trial court directed Juror No. 4 to speak to the sheriff then called the attorneys to the bench and held a bench conference without the court reporter. Later, after all the prospective jurors had left the courtroom, the trial court summarized the discussion for the record:

THE COURT: [T]he record will reflect that during the course of the voir dire, Juror No. 4 was tearing up and wiping her eyes. The Court asked her to go speak to the deputy. She spoke to the deputy and indicated that she was tearing up and crying because she had a son who's incarcerated.

Counsel approached the bench and, at that time, were given the choice of having the juror remain as a juror or excusing her. By agreement, counsel for the State and counsel for defense agreed that Juror No. 4 would be excused. She was, therefore, directed to return to the seventh floor and excused at that point. If the Court has inaccurately stated anything that occurred for the record, please say so now.

On behalf of the State?

MR. FAUCETTE: No, Your Honor.

THE COURT: On behalf of the defense?

MR. BOWLES: No, Your Honor.

It is clear that jury selection is a critical stage of the proceedings, and we readily conclude that Thomas had a right to be present at this bench conference. See Champ , supra, 310 Ga. at –––– (2) (b), 854 S.E.2d 706 (holding that a defendant has the right to be present at a bench conference during which a prospective juror is discussed and removed). Thus, we must now consider whether Thomas relinquished his right to be present. Id. at –––– (2) (c), 854 S.E.2d 706 ; Green v. State , 358 Ga. App. 843, –––– (3), 856 S.E.2d 427 (2021).

[T]he right to be present belongs to the defendant, and he is free to relinquish it if he so chooses. The right to be present is waived if the defendant personally waives it in court; if counsel waives it at the defendant's express direction; if counsel waives it in open court while the defendant is present; or if counsel waives it and the defendant subsequently acquiesces in the waiver. As our precedents explain, acquiescence, which is a tacit consent to acts or conditions, may occur when counsel makes no objection and a defendant remains silent after he or she is made aware of the proceedings occurring in his or her absence. Acquiescence implies a knowledge of those things which are acquiesced in, as one can not acquiesce in a wrong while ignorant that it has been committed.

(Citations and punctuation omitted.) Burney v. State , 299 Ga. 813, 820 (3) (b), 792 S.E.2d 354 (2016).

Here, Thomas was present in the courtroom during voir dire and was therefore able to...