Gillespie v. State

• Decision Date: 16 July 2015
• Docket Number: Nos. A15A0146,A15A0149.,s. A15A0146
• Citation: 774 S.E.2d 255,333 Ga.App. 565
• Parties: GILLESPIE v. The STATE. Collins v. The State.
• Court: Georgia Court of Appeals

333 Ga.App. 565

774 S.E.2d 255

GILLESPIE

v.The STATE.

Collins

v.The State.

Nos. A15A0146

A15A0149.

Court of Appeals of Georgia.

July 16, 2015.

Reconsideration Denied July 30, 2015.

John Walter Donnelly, Athens, Jessica Irene Benjamin, for Appellant (case no. A15A0149).

Michael N. Brooks, for Appellant (case no. A15A0149)

Jon Richard Forwood, Asst. Dist. Atty., Kenneth W. Mauldin, Dist. Atty., for Appellee.

Opinion

RAY, Judge.

Larry Daymond “Mon” Gillespie and Legregory Collins, along with other co-defendants, were indicted for armed robbery, aggravated assault, and aggravated battery. Following a jury trial, Gillespie was convicted on August 9, 2011, of armed robbery and aggravated assault. He was acquitted of aggravated battery. Collins was convicted of armed robbery, aggravated assault, and aggravated battery. Both men moved for new trials, and the trial court granted those motions, in part, as to sentencing issues. Collins and Gillespie now appeal from the partial denial of their motions for new trial.

In Case No. A15A0146, Gillespie contends that the trial court erred in allowing the State to introduce evidence of the circumstances of his arrest, in denying his motion for mistrial, and in admitting his booking photograph over objection. He also argues that his constitutional rights were violated because he was not present at bench conferences during jury selection. In Case No. A15A0149, Collins mirrors Gillespie's enumerations as to the admission of his booking photograph and his absence from bench conferences during voir dire. The two appeals are consolidated for our review. For the reasons that follow, we vacate and remand as to Gillespie in Case No. A15A0146, and we reverse and remand for a new trial as to Collins in Case No. A15A0149.

Viewed in the light most favorable to the jury's verdict, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), the evidence shows that on February 16, 2010, Athens–Clarke County police were called to the scene of an armed robbery at an apartment where Bryan Baker and Damion Scott James lived. Several friends of Baker's and James's also were there. A young woman named Heidi Elrod called Baker to ask if he had any marijuana for sale because her friend, Nikki Hancock, a co-defendant in the case, had contacted her trying to find some. Elrod had previously been on a three-way call with Hancock and another co-defendant, Robert Gresham, who said he also wanted to buy marijuana. She arranged a meet-up at Baker's apartment. Gresham got a ride from his cousin, and they picked up Collins and Gillespie along the way. Gresham testified that he told Collins that he was planning to steal the marijuana, and Gresham obtained a pistol from another individual. Gillespie had his own gun, which he later gave to Collins.

When they got to the apartment, Elrod, Gresham, and Collins went in and were shown “about a pound and a half of reefer.” Gresham wanted four pounds, so Baker retrieved additional marijuana in plastic bags. Gillespie then entered and sat down at the table to negotiate price, although the plan was still on to steal the drugs. Gresham testified that he and Collins then “pulled our guns out” and ordered the occupants of the apartment onto the ground. Collins was holding Gillespie's gun when the victims were ordered to the ground. Collins struck Baker across the face with his gun, injuring him.

Gresham testified that he gave his gun to Gillespie, and one of the victims testified that he and the other occupants of the apartment were then held at gunpoint by a man with “twists” in his hair. Another victim testified that a tall black man with “braids” grabbed his guitar and acted as if he would hit him with it. Mug shots of the co-defendants show that only Gillespie had twists or braids in his hair; Collins and Gresham's photographs show close-cropped hair. The defendants took cash, marijuana, a camera, and a handgun from the apartment.

Surveillance video from the apartment parking lot showed that the car in which the defendants were riding both arrived at and left the apartment complex. Collins's cousin, who drove the vehicle, testified that she dropped the defendants off so they could “purchas[e] some weed” and waited in her vehicle for them. She later saw them “running” to her vehicle. Collins, Gillespie, and Gresham all got in her car, and they fled the scene. The robbers later divided up the marijuana. Neither Collins nor Gillespie contests the sufficiency of the evidence.

Both Collins and Gillespie argue that the trial court erred because they were not present at bench conferences during jury selection at which several potential jurors were discussed and excused, and one potential juror was questioned and discussed.

It is true that “the constitutional right to be present does not extend to situations where the defendant's presence would be useless”—for example, during bench conferences dealing with logistical or procedural matters or questions of law about which a defendant presumably has no knowledge. (Citation and punctuation omitted.) Heywood v. State, 292 Ga. 771, 774(3), 743 S.E.2d 12 (2013). However, our Supreme Court has unequivocally held that a defendant is entitled to be present during discussions that involve “whether to replace the prospective jurors.” Id. at 774–775(3), 743 S.E.2d 12, citing Zamora v. State, 291 Ga. 512, 518(7)(b), 731 S.E.2d 658 (2012) (holding that the defendant “clearly had a constitutional right to be present during the proceedings at which one of the jurors trying his case was removed”) (citation omitted); and Sammons v. State, 279 Ga. 386, 387(2), 612 S.E.2d 785 (2005) (“Proceedings at which the jury composition is selected or changed are a critical stage at which the defendant is entitled to be present”) (footnote omitted).

“Although counsel may waive a defendant's presence, in order for the waiver of counsel to be binding on the defendant, it must be made in his presence or by his express authority, or be subsequently acquiesced in by him.” (Footnote and punctuation omitted.) Sammons, supra at 387(2), 612 S.E.2d 785. In this context, a defendant's presence means that he can “see and hear” the proceedings. Zamora, supra at 518(7)(b), 731 S.E.2d 658. Any denial of the right to be present under the Georgia Constitution is not subject to harmless error review on appeal and is presumed prejudicial. Peterson v. State, 284 Ga. 275, 279, 663 S.E.2d 164 (2008).

For reasons of convenience, we will address Case No. A15A149 first and Case No. A15A0146 second.

Case No. A15A0149

1. (a) Collins. At the motion for new trial hearing, Collins's counsel testified that his client was not present during the bench conferences; he did not believe that he told his client that there was a right to be present; that while “in a general sense” Collins's counsel was familiar with cases discussing a defendant's right to be present during jury selection, he had never thought about or researched whether his client had a right to be present and could not recall ever advising a client of the right to be present during bench conferences for jury selection. He also did not recall telling Collins what occurred at the bench conferences.

Collins testified that although he was in the courtroom, he could not hear what was said and that his lawyer did not tell him about his rights in this context or tell him what was discussed. Collins's counsel testified that he attempted to speak in a voice that could not be heard by others in the courtroom during the bench conferences, and counsel for the State twice mentioned that the lawyers were whispering during the conferences.

The State argues, inter alia, that Collins had no knowledge that would have assisted his trial counsel during the bench conferences,¹ and the trial court's order on motion for new trial determined:

[T]he [c]ourt does not find that the Defendant himself or through counsel sought to participate, and does not find that counsel failed to inform the Defendant after the bench conferences what had transpired. The [c]ourt also does not find that, had the Defendant participated, he would have had any knowledge, thoughts or input that could have assisted his counsel or his case. Because there is no evidence of any meaningful relationship between the Defendant's presence or absence at these bench conferences, which focused on essentially legal argument, and the Defendant's opportunity to defend against the charges against him, the [c]ourt concludes that the motion fails on this ground.

As an initial matter, the above-referenced determination indicates that the trial court disbelieved either Collins or his trial counsel or both. While credibility determinations are, without question, for the trial court, see Finch v. State, 287 Ga.App. 319, 321(1)(b), 651 S.E.2d 478 (2007), even in the face of such disbelief there must be some evidence supporting the trial court's views. Russell v. State, 236 Ga.App. 645, 650(2), 512 S.E.2d 913 (1999) (trial court's findings of fact must be affirmed unless clearly erroneous); Gravitt v. State, 301 Ga.App. 131, 133(1), 687 S.E.2d 150 (2009) (clearly erroneous test is the same as any evidence test). The burden rests upon the State to supply evidence of waiver. McKinney v. State, 251 Ga.App. 896, 902(5), 555 S.E.2d 468 (2001). The State indicates in its appellate brief that Collins waived his right to be present. However, Collins's trial counsel testified that he did not believe he told Collins—or had ever told any client—of a right to be present. Collins's trial counsel stated that he did not recall telling Collins what took place during the bench conferences. Such statements do not suffice as evidence to satisfy the State's burden. Rather, they show nothing more than counsel's inability to recall what happened, which amounts to an absence of evidence. No action or statement by Collins himself showed a waiver of his rights. Given that the trial court did not immediately excuse the juror (apparently...