Russell v. State

• Decision Date: 24 February 1999
• Docket Number: No. A98A2414., No. A98A2346
• Citation: 236 Ga. App. 645,512 S.E.2d 913
• Parties: RUSSELL v. The STATE. Steele v. The State.
• Court: Georgia Court of Appeals

512 S.E.2d 913

236 Ga. App. 645

RUSSELL v. The STATE.

Steele v. The State.

Nos. A98A2346, A98A2414.

Court of Appeals of Georgia.

February 24, 1999.

Yvonne A. Twyman-Williams, Decatur, for appellant (case no. A98A2346).

Howard J. Weintraub, Atlanta, for appellant (case no. A98A2414).

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

SMITH, Judge.

Derrick Russell and Darrell Steele were indicted jointly for armed robbery. They were tried jointly and convicted by a jury. After judgment was entered, Steele moved for a new trial, while Russell appealed directly to this Court. In Russell v. State, 230 Ga.App. 546, 497 S.E.2d 36 (1998), this Court found that Russell's conviction was supported by sufficient evidence under the standard set forth in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and found no merit in several other enumerations of error. We affirmed Russell's conviction, however, only on condition that the trial court hold an evidentiary hearing to address issues raised by Russell concerning several in-chambers conferences during which voir dire was conducted, a McCollum¹ challenge to the jury's composition was made, and the jury was re-struck.

Upon remand, the trial court consolidated the hearing directed by this Court with the hearing on Steele's motion for new trial. That motion raised the same issue with regard to both defendants' absence from the in-chambers conferences, in addition to several other issues. After the hearing, at which both trial counsel, the trial prosecutor, and both defendants testified, the trial court entered an order denying Steele's motion for new trial on all grounds and specifically finding that the defendants had acquiesced in their counsel's waiver of their presence at the in-chambers meetings. Each defendant filed a separate appeal, and those appeals have been consolidated for review because of the common issues. We find that the evidence at trial was sufficient to authorize Steele's conviction. But because the evidence presented at the post-trial hearing does not support the trial court's finding that both defendants acquiesced in a waiver of their right to be present during voir dire proceedings and jury selection, we conclude that both convictions must be reversed and both defendants afforded a new trial.

1. We first address Steele's contention that the evidence was insufficient to support his conviction. Steele maintains that the evidence showed only that he was merely present when Russell committed an armed robbery. We do not agree.

Construed to support the verdict, the evidence showed that Steele entered a truck rental store on Lawrenceville Highway in DeKalb County shortly after noon. According to the owner, he was wearing a sweater or sweatshirt that had the word "black" written on it, and he looked "around the whole building." When the owner told him that renting a truck would require an $80 deposit, he said he did not have that much money and left. The owner thought Steele had left to go to the bank "to get some money for the deposit, which isn't unusual." Instead, Steele followed another man, Russell, back into the store; Russell pulled a gun and pointed it at the owner. Steele said nothing, but sat on a divan inside the store while the gun was pointed at the owner. The owner turned over all he had to the gunman, which was "between $60 and $100," and the two men left.

The owner called 911 and reported the crime, giving a description of the truck and the robbers. Officer James Steedle of the Clarkston Police Department was on patrol when he heard the lookout. A short time later, he observed a truck that fit the description in the lookout, and he followed it. He activated his lights and siren, and after initially failing to stop, the truck pulled over. Steedle radioed his location and additional officers arrived. A showup was conducted at the scene, and the victim identified both occupants as the robbers. Russell was driving, and Steele was the passenger. Another officer, who assisted Steedle at the arrest, testified that Steele was wearing a sweatshirt that had on its front the words "Black by popular demand." A search of the truck revealed a handgun under the driver's seat.

Detective David Donehoo of the DeKalb County Police Department interviewed Steele at the police station. Steele was read his Miranda rights and he agreed to waive his rights and give a statement. In the statement, Steele admitted being at the truck rental store when his companion committed armed robbery but stated he had no prior knowledge that the crime would be committed.

Although Steele was not the gunman, this evidence, including Steele's entering the store first, his following Russell back in, his sitting quietly while Russell pulled the gun and took the money, and his leaving with Russell in the truck, provided ample evidence to authorize the jury to find him guilty of armed robbery as a party to the crime, under the standard set forth in Jackson v. Virginia, supra. OCGA § 16-2-20.

2. In our opinion in Russell, supra, we directed the trial court to "consider and balance all relevant factors in arriving at its determination regarding the issue of acquiescence and make relevant findings of fact" on at least six issues: "(1) whether appellant knew of his right to be present during jury selection; (2) whether appellant's counsel waived appellant's right to be present in the presence of appellant; (3) whether appellant posed any form of timely objection to conducting voir dire outside his presence; (4) whether appellant was absent voluntarily or whether he was in confinement or custody of the State; (5) whether the trial court announced in the appellant's presence that counsel would meet with him in chambers to continue the voir dire; and (6) if the trial court so announced the chambers conference in appellant's presence, whether a fair risk existed that such announcement would have misled appellant as to his right to be present during voir dire." Id. at 550(6), 497 S.E.2d 36.

In its order, the trial court addressed these factors. We need not examine each of the trial court's findings, as we conclude that the trial court's finding as to the first factor is clearly erroneous, warranting reversal. The trial court found that "each defendant at least implicitly knew of his right to be present during jury selection. Both defendants were present at the outset of trial when jury selection began and were present in court when the attorneys informed potential jurors that sensitive issues could be handled privately in chambers. Additionally, both defense counsel testified that it was their normal practice to advise clients of their rights, to explain trial procedures, and to consult with their clients during trial. Although neither attorney recalled specifically telling their clients that they had the right to be present in chambers, both attorneys testified that they informed defendants of what occurred in their absence and neither defendant voiced any objection."

In Russell, supra, we reviewed the law with regard to a defendant's right under Art. I, Sec. I, Par. XII of the Georgia Constitution of 1983 to be present during voir dire, which is "a `critical stage of the proceedings.'" Id. at 546-547(1), 497 S.E.2d 36. The State conceded, and this Court agreed, that as to Russell, the record failed to show either a personal waiver or an express authorization of his counsel to waive his right to be present. Id. The same is true with regard to Steele. We reiterated in Russell that although counsel may waive this right for a client, that occurs only if done in the client's presence or with the client's express authority, or if the client subsequently acquiesces in counsel's waiver. Id. at 547, 497 S.E.2d 36. It is well established that even though counsel is present at the critical stage and makes no objection to his client's absence, no waiver of the defendant's right occurs unless the client thereafter knowingly acquiesces in his counsel's choice to proceed without him. Id.; see also Goodroe v. State, 224 Ga.App. 378, 380(1), 480 S.E.2d 378 (1997).

It is undisputed that neither Russell nor Steele made any objection regarding his absence from the chambers conferences. The question, therefore, is whether this silence amounted to acquiescence by either Russell or Steele in the waiver of his presence by his counsel. "Acquiescing" in such a waiver necessarily implies that one knows of the right one is consenting to relinquish. A waiver is "an intentional relinquishment or abandonment of a known right or privilege." Williams v. State, 183 Ga.App. 373, 374(1), 358 S.E.2d 914 (1987). "One cannot acquiesce in a wrong while ignorant that it has been committed." Dunaway v. Windsor, 197 Ga. 705, 709, 30 S.E.2d 627 (1944). To determine whether Russell or Steele acquiesced, we must therefore first determine whether either Russell or Steele knew that he had the right to be present when the proceedings moved into chambers to continue the voir dire or jury selection. We cannot assume such knowledge.

Contrary to the trial court's finding, we find that the record does not establish even "implicitly" that either Russell or Steele had such knowledge. The facts relied upon by the trial court arguably may support a finding that Russell and Steele may have known, after the fact, that the McCollum challenge was addressed in chambers in their absence. Russell's trial counsel testified that his recollection was that his client and he both disagreed with the trial court's ruling with regard to the challenge. Steele's trial counsel testified that when they returned to the courtroom Steele inquired why they had been gone so long, and she told him that they were dealing with the challenge and that the jury had been reconstituted.

Although both trial counsel testified that it was their general practice to keep...