Johnson v. State

• Decision Date: 29 October 2018
• Docket Number: A18A0980
• Citation: 821 S.E.2d 76,347 Ga.App. 831
• Parties: JOHNSON v. The STATE.
• Court: Georgia Court of Appeals

347 Ga.App. 831

821 S.E.2d 76

JOHNSON

v.The STATE.

A18A0980

Court of Appeals of Georgia.

October 29, 2018

Angela Z. Brown, for Appellant

Anna Green Cross, Sherry Boston, Decatur, for Appellee

Brown, Judge.

After a jury trial, Darius Johnson was found guilty of armed robbery and hijacking a motor vehicle in connection with the robbery of a pizza deliveryman. He appeals the denial of his motion for new trial, contending that the trial court erred by allowing a record of his text messages into evidence, by allowing the record of his text messages to go back with the jury during deliberations, and in failing to charge the jury on robbery as a lesser included offense of armed robbery. He also argues that his right to be present at critical stages of his trial was violated by his absence from bench conferences and that his trial counsel rendered ineffective assistance. For the reasons explained below, we reverse.

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 adduced at trial shows that on the night of March 3, 2012, the victim, a deliveryman for Domino’s Pizza, was approaching a home to make a delivery when the defendant and another man rounded the side of the house and demanded that the victim "drop everything." While one of the men held a gun in his face, the victim gave up his money, cell phone, and car keys along with the pizza. A third, and possibly fourth, man then ran out from the other side of the house. After the defendant and the other men fled the scene in the victim’s car, the victim ran to a gas station and contacted police. The victim provided the responding officer with the phone number that had placed the delivery order. The police obtained records associated with that phone number and learned that it belonged to the defendant.

When the Dekalb County Police Department later recovered the victim’s car, they discovered a wallet with a driver’s license belonging to Derrick Phillips in the passenger seat. The police questioned Derrick Phillips along with his older brother, Antonio Phillips. Both initially denied any involvement, but Antonio Phillips later confessed to being one of the men who robbed the victim and implicated the defendant and co-defendant Brandon Johnson.¹

The defendant was indicted on one count of armed robbery, one count of hijacking a motor vehicle, and one count of possession of a firearm during the commission of a felony. Following a joint trial with his co-defendant, the jury found the defendant guilty of armed robbery and hijacking a motor vehicle and not guilty of possession of a firearm during the commission of a felony.²

1. We first address the defendant’s fourth enumeration of error, wherein he argues that his absence from bench conferences throughout the trial violated his right to be present during all stages of his trial. We agree.

We first note that the defendant has not cited to the transcript for a single, specific bench conference from which he was excluded. Nevertheless, this Court has reviewed the entire transcript for such bench conferences, and the record shows that the defendant was excluded from at least 44 bench conferences throughout the proceedings.

"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 [c]ourt." (Citation and punctuation omitted.) Brewner v. State , 302 Ga. 6, (9) (II), 804 S.E.2d 94 (2017). This right "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." (Citation omitted.) Burch v. State , 343 Ga. App. 474, 477 (2), 806 S.E.2d 863 (2017). However, it "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 omitted.) Gillespie v. State , 333 Ga. App. 565, 567, 774 S.E.2d 255 (2015). Because "[a] defendant’s presence at bench conferences dealing with such topics bears no relation, reasonably substantial, to the fullness of his opportunity to defend against the charge," his "right to be present is not violated by his absence from such bench conferences." (Citations and punctuation omitted.) Heywood v. State , 292 Ga. 771, 774 (3), 743 S.E.2d 12 (2013).

(a) All transcribed bench conferences during the actual trial involved either legal arguments regarding objections, evidentiary issues, proper trial procedure, or logistical matters such as when to take breaks in the proceedings. Accordingly, the defendant’s absence from these discussions did not violate his constitutional right to be present. See Parks v. State , 275 Ga. 320, 324-325 (3), 565 S.E.2d 447 (2002).

(b) Turning to the bench conferences held during jury selection, we note that while the entirety of jury selection was recorded and transcribed, bench conferences during jury selection were not recorded.³ The first such conference occurred on the morning of jury selection. When the jury broke for lunch, the following transpired:

[COUNSEL FOR DEFENDANT]: Judge, would we – I don’t know how the court wants to handle this, but when we do approach the bench, I believe the court instructed that we will put on the record what was said. Do we want to do that now since we approached earlier?

THE COURT: Sure. What I have so far is the State asked to approach, and what we addressed was first [counsel for co-defendant] and you all – and I just paraphrased – commenting on the questions that he asked. I believe that was in reference to the question about whether the fact that the defendants were African-American, would that affect your ability to be fair and impartial. And I believe the comment was, this is a very important question. So, Mr. Howard, was that the substance of your question?

[THE STATE]: Yes, your Honor.

THE COURT: Do you want to address that?

...

THE COURT: And there was also an objection that was made in reference to asking two questions is what I wrote down. And I believe that was in reference to the question about whether or not if the defendant chose not to testify, would they hold that against him. And then there was a question that was asked while the jurors were responding to that question, do you think the defendant needs to testify. Is that the substance of your objection?

...THE COURT: Okay. And then there was lastly a question about setting aside their opinions about punishment/guilt. What I indicated was that I believe the substance of the question was in reference to whether they could listen to the evidence and listen to the instructions of the court and render their decision based solely on those two things. Is there anything else we need to address in reference to that?

[COUNSEL FOR CO-DEFENDANT]: No, your Honor.

[COUNSEL FOR DEFENDANT]: Judge, I just wanted that to be on the record since that was a conversation that was held at the bench and [defendant] was not present at the bench.

COURT: Okay.

[COUNSEL FOR DEFENDANT]: I just wanted to make sure that that was on the record.

THE COURT: And what I indicated was that I don’t normally have defendants, especially a defendant who is in custody, approach the bench whenever we have bench conferences. What I will do is make as many notes as I possibly can and put whatever objections or discussions we have at the bench on the record. If there is something else that you want to say to supplement, then that’s fine. But I’m not comfortable with having a defendant, especially one that’s in custody, considering that we have right now four lawyers and two defendants – well, six lawyers including the attorneys from the State – six lawyers and two defendants, one of whom is in custody. And I right now have one deputy in the courtroom. So I’m not comfortable having everybody approaching. So we will put whatever discussions we have at the bench on the record at the appropriate time.⁴

It is clear from this colloquy that the trial court’s procedure for handling bench conferences already had been brought up and discussed, but this earlier conversation is not in the transcript. We presume that it was discussed in the course of one of the first bench conferences.

Before voir dire began, the trial court gave the following instruction to the attorneys:

And because we have started so late, if you have a juror that stands up and they have a real hardship that is truly a legal hardship or something you all know – the State knows, generally, what I will excuse people for, but let’s not go into a whole lot of conversation after that. Let’s ask the hardship question first. If you have a question about whether the hardship qualifies, then just ask to approach, so that we don’t use a whole lot of time going through jurors that we’re not going to use anyway. And again, if there is a question about whether or not the person should be struck for cause, I would rather you just approach and let’s address it at the bench rather than going through asking a whole lot of questions of jurors that are going to be excused.

Thirteen bench conferences took place during the voir dire of potential jurors 5, 17, 25, 26, 28, 35, 37, 39, 45, and 46. The trial judge, counsel for the State, counsel for co-defendant, and counsel for the defendant were the only persons present at these discussions. When voir dire of all potential jurors concluded, the trial court asked for any motions to strike for cause. Potential jurors 25, 26, 37, and 45 were thereafter struck for cause for hardship reasons. Juror 39 was struck for cause based on his intimation that he believed the burden of proof was on the defendant and his doubt that he could be impartial. After the jury was selected and released for the day, the following transpired in open court:

THE COURT: There were a couple of bench

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