Heath] did not express any concern about or objection to [her] absence during that discussion, nor did [s]he ask for more details about the matter. ..." Goodrum v. State , 303 Ga. 414, 416 (II), 812 S.E.2d 220 (2018). Under these circumstances, Heath acquiesced in her absence from such discussion.

The trial transcript indicates that Appellant could not hear, and therefore was not "present," for any of the bench conferences at issue. Some portions of the bench conferences might be characterized as discussion of logistical or procedural issues regarding the jury selection process or legal argument about removal of particular prospective jurors (although we note that "this Court's precedents to date have not drawn a distinction between factual and legal issues with regard to a defendant's right to be present during discussions about a juror's removal," Goodrum v. State , 303 Ga. 414, 419, 812 S.E.2d 220 (2018) (Nahmias, J., concurring)). Several of the bench conferences involved or related to direct discussions between the trial court and prospective jurors, however, and the court also made the decision to remove a number of prospective jurors during the bench conferences.

See id. at 568-569 (1) (a), 774 S.E.2d 255. See also Goodrum v. State , 303 Ga. 414, 419, 812 S.E.2d 220 (2018) (Nahmias, J., concurring) ("this Court’s precedents to date have not drawn a distinction between factual and legal issues with regard to a defendant’s right to be present during discussions about a juror’s removal"). Our conclusion that it was improper to exclude the defendant from these bench conferences does not conclude our inquiry, however.

The Supreme Court of Georgia has repeatedly declined to clarify whether Mallory remains binding following implementation of the new Evidence Code. See, e.g. , Goodrum v. State , 303 Ga. 414, 418 (III) n.2, 812 S.E.2d 220 (2018) ; Dublin v. State , 302 Ga. 60, 65 (3), 805 S.E.2d 27 (2017) ; Kennebrew v. State , 299 Ga. 864, 872 n.4, 792 S.E.2d 695 (2016) ; Hernandez v. State , 299 Ga. 796, 800 (4) n.3, 792 S.E.2d 373 (2016) ; Seabolt v. Norris , 298 Ga. 583, 587 (3) n.3, 783 S.E.2d 913 (2016) ; State v. Sims , 296 Ga. 465, 471 (3), 769 S.E.2d 62 (2015) ; Wilson v. State , 295 Ga. 84, 88 (3) n.6, 757 S.E.2d 825 (2014) ; Romer v. State , 293 Ga. 339, 343 (2) n.4, 745 S.E.2d 637 (2013) ; Yancey v. State , 292 Ga. 812, 817 (2) n.9, 740 S.E.2d 628 (2013).--------