(b) This Court has long held that "the Georgia Constitution guarantees criminal defendants ‘the right to be present, and see and hear, all the proceedings which are had against him on [his] trial before the [c]ourt.’ " Zamora v. State , 291 Ga. 512, 517-518, 731 S.E.2d 658 (2012) (quoting Wade v. State , 12 Ga. 25, 29 (1852) ). We have explained that this right may be violated when a defendant is excluded from conferences held at the bench between the trial court and the lawyers for the parties, because while the defendant may be present in open court and thus able to see such bench conferences, he presumably cannot hear what is discussed (as preventing jurors and others in the courtroom from hearing such conferences is their very purpose).
" (Citations and punctuation omitted.) Zamora v. State , 291 Ga. 512, 517-518 (7) (b), 731 S.E.2d 658 (2012). "[W]e have repeatedly held that a defendant has the right to participate in a bench conference during which a prospective juror or a trial juror is discussed and removed."
In her sole enumeration of error, Smith contends that the trial court committed reversible error by depriving her of her constitutional right to be present during all critical stages of her trial. See, e.g., Zamora v. State, 291 Ga. 512, 517–518 (7) (b), 731 S.E.2d 658 (2012) (discussing this Court's longstanding recognition of a criminal defendant's right, under the Georgia Constitution, " ‘to be present, and see and hear, all the proceedings which are had against him on the trial before the Court’ "). Smith's claim arises from her exclusion from an unrecorded bench conference between the trial court and counsel, after jury deliberations had begun, regarding the excusal of one of the jurors. We conclude that Smith acquiesced in the error she now asserts.
As both parties recognize, under this doctrine, Appellant had the right to be present during the discussion that led to Juror # 33's removal for cause. See Zamora v. State, 291 Ga. 512, 517–518, 731 S.E.2d 658 (2012) (reiterating that “ ‘[p]roceedings at which the jury composition is selected or changed are ... critical stage[s] at which the defendant is entitled to be present.’ ” (citation omitted)). However,
The trial court denied Steen's motion for new trial, and he appeals, asserting seven enumerations of error, including violation of his Georgia constitutional right to be present at all critical stages of his trial by his exclusion from unrecorded bench conferences during jury selection. See generally Zamora v. State , 291 Ga. 512, 517-518 (7) (a), (b), 731 S.E.2d 658 (2012). The murder occurred on February 27, 2015.
(Citation and punctuation omitted.) Zamora v. State , 291 Ga. 512, 518 (7) (b), 731 S.E.2d 658 (2012). "The right to be present 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."
At the hearing on White’s motion for new trial, it appeared that White’s family and friends, White’s appellate counsel, and the prosecutor had been unable to locate Frank. (b) Relying upon Zamora v. State , 291 Ga. 512, 731 S.E.2d 658 (2012), White contends that his trial counsel was ineffective in failing to preserve his right to be present for bench conferences. To be sure, White had a "right under the Georgia Constitution to be present during all critical stages of the criminal proceeding against him."
Appellant was entitled to be present during this discussion, because the topic included whether to replace the prospective jurors. See Zamora v. State, 291 Ga. 512, 518 (731 SE2d 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"); Sammons v. State, 279 Ga. 386, 387 (612 SE2d 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."). However,
(Citation and punctuation omitted.) Zamora v. State , 291 Ga. 512, 518 (7) (b), 731 S.E.2d 658 (2012). Voir dire is one such stage.
And as the Supreme Court of Georgia has held, a defendant's absence from bench conferences involving logistical matters—such as the order in which witnesses would be called and when to take breaks in the trial proceedings—does not violate the constitutional right to be present.Zamora v. State , 291 Ga. 512, 518 (7) (b), 731 S.E.2d 658 (2012) (punctuation omitted); seeBrewner , 302 Ga. at 11, 804 S.E.2d 94 (II), 804 S.E.2d 94 (noting that defendant has a right to be present when jury selection issues are being decided).Brewner , 302 Ga. at 11, 804 S.E.2d 94 (II), 804 S.E.2d 94 (punctuation omitted).