Winfield v. State, A93A1665

• Decision Date: 10 November 1993
• Docket Number: No. A93A1665,A93A1665
• Parties: WINFIELD v. The STATE.
• Court: Georgia Court of Appeals

Page 849

437 S.E.2d 849

210 Ga.App. 849

WINFIELD v. The STATE.

No. A93A1665.

Court of Appeals of Georgia.

Nov. 10, 1993.

Harold M. Harvey, Atlanta, for appellant.

John C. Pridgen, Dist. Atty., for appellee.

COOPER, Judge.

Appellant was tried with four co-defendants for armed robbery and all five were found guilty by a jury. He appeals from the judgment and sentence entered on the jury verdict.

The evidence at trial showed that on October 15, 1990, two armed gunmen robbed the Citizen's Bank in Byromville, Georgia, shortly after it opened. Both robbers wore baseball caps, gloves, and masks, although the shorter of the two gunmen took his mask off briefly. Several days later, authorities executed a search warrant at an apartment in College Park, Georgia. There authorities found appellant and two of his co-defendants; money taken from the bank during the robbery, most of which was still in Citizen's Bank of Byromville bank straps; empty bank straps including one Federal Reserve bank strap which had to have come from the Byromville bank vault; and gloves identical to those used in the robbery. Surveillance cameras in the bank captured the entire robbery on videotape from which still pictures were developed showing various stages of the robbery. At trial, the Byromville police chief, who had observed appellant on at least two occasions for several hours at a time, was shown a photograph of the robbery and identified the shorter robber seen in the photograph as being appellant.

1. Appellant argues that he was denied his constitutional right to be present during voir dire and a portion of the second day of trial. When the trial commenced shortly after 9:00 a.m., neither appellant, who was free on bond, nor his counsel was present; however, the prosecutor informed the court that he understood counsel for appellant was on his way. After a bench conference in which counsel for co-defendant Bryant Gee indicated he did not want to proceed without appellant, the trial court decided it would propound general qualification questions to the jury pending the arrival of appellant and his counsel. Counsel for appellant arrived as the court was in the process of excusing three jurors for cause. Counsel informed the court that he had spoken to appellant around 11:00 the previous evening and did not know what problems appellant might have encountered getting there; however, he was ready to proceed pursuant to appellant's arrival.

Without objection, the trial court divided the prospective jurors into four panels. Counsel for co-defendant Gee then requested the jury not be struck until appellant arrived. The court indicated it would hold a recess to discuss what to do if appellant did not arrive at which point counsel for appellant stated that he had just received word that his client had car trouble and was expected to arrive around 11:30 a.m. The court indicated that it would recess after voir dire in any event. After a bench conference concerning striking the jury, the court proceeded with voir dire without objection from appellant's counsel who participated fully in voir dire on appellant's behalf.

Appellant arrived during voir dire of the fourth panel of prospective jurors, and his counsel introduced him to the pool of jurors. After voir dire, appellant and his counsel participated in selection of the jury without objection. The court administered the oath to the jury and, after opening statements, adjourned for the day.

When court reconvened the next morning, counsel for co-defendant Gee moved for a continuance on the grounds his client had encountered car trouble and was expected to arrive from Atlanta around noon. Appellant's counsel also moved for a continuance, noting that he expected his client would be there. The trial court denied the motions on the ground both defendants knew their case was being tried and had a duty to be present. Trial resumed, and appellant and Gee arrived at 2:36 p.m., during direct examination of the State's sixth witness. The prosecutor moved to revoke both appellant's and Gee's bonds during the next recess. Counsel for Gee responded that his client had received a traffic ticket at 9:25 that morning in East Point, Georgia, had been arrested for driving on a suspended license, and had to arrange for bond. Counsel for appellant explained that appellant had traveled to court with Gee. The court denied the motion and appellant was present for the remainder of the trial.

The defendant's right to be present at every stage of the trial extends to selection of the jury. Fictum v. State, 188 Ga.App. 348(2c), 373 S.E.2d 54 (1988). However, the defendant may waive the right to be present during trial proceedings by voluntarily absenting himself from the court. Id. at 349, 373 S.E.2d 54. Furthermore, the right to be present during voir dire or jury selection may be waived by defendant's attorney in defendant's presence, by his express authority, or if he subsequently acquiesces to his attorney's waiver. Allen v. State, 199 Ga.App. 365(6), 405 S.E.2d 94 (1991); see also Williamson v. State, 207 Ga.App. 565(1), 428 S.E.2d 628 (1993).

Appellant voluntarily absented himself from the court since he was free on bail and clearly knew the proceedings had begun, but had not made sufficient arrangements to attend. See Fictum, supra. Moreover, while appellant's counsel did not expressly waive appellant's right to be present, at no time did counsel object to proceeding with voir dire in appellant's absence or move for a continuance. Furthermore, appellant's counsel participated fully in voir dire on appellant's behalf without objection. When appellant finally did arrive, neither he nor his counsel objected to voir dire having proceeded in his absence; appellant's counsel simply introduced him to the pool of jurors and stated that, while appellant had encountered car trouble, he had arrived as promised. Appellant was present for the remainder of voir dire and, without objection, he and his counsel participated in jury selection. Thus, the record supports a finding that appellant acquiesced in his attorney's conducting voir dire in his absence, and we conclude the trial court did not err in proceeding with voir dire without appellant present. See Allen v. State, supra (defendant acquiesced in his attorney's apparent waiver of his presence at jury selection when he met with counsel prior to trial and voiced no complaint about the jury being picked in his absence). Pollard v. State, 175 Ga.App. 269, 333 S.E.2d 152, cited by a...