☢ test - Í

Ramage v. State, 314 Ga.App. 651, 725 S.E.2d 791 (March 8, 2012). Following convictions for child molestation, incest, and related offenses, ruling on motion for new trial remanded for findings of fact: did defendant personally waive right to be present during judge’s conferences with deliberating jury? Counsel consented for judge to enter jury room and answer jury’s questions, multiple times, but record fails to disclose, and trial court failed to make findings of fact, as to whether defendant himself consented, either before or after. “Although an accused can waive the right to be present, his lawyer properly can waive the right on his behalf, we have said before, only in his presence, with his express authority, or with his subsequent acquiescence. Stewart v. State, 210 Ga.App. 474, 474(1) (436 S.E.2d 679) (1993). See also Locklin [ v. State, 228 Ga.App. 696, 697(2) (492 S.E.2d 712) (1997)].” Lyde v. State, 311 Ga.App. 512, 716 S.E.2d 572 (August 25, 2011). Child molestation and related convictions affirmed; no violation of defendant’s right to be present where trial court discussed legal argument with counsel outside defendant’s presence. “‘[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.’ Kentucky v. Stincer, 482 U.S. 730, 745 (107 S.Ct. 2658, 96 L.Ed.2d 631) (1987). As defined by the Georgia Supreme Court, ‘a critical stage in a criminal prosecution is one in which a defendant's rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way. ’ (Citation and punctuation omitted.) Huff [ v. State, 274 Ga. 110, 111(2) (549 S.E.2d 370) (2001)] (no ‘unequivocal’ right to be present during charge conference).” Issue addressed outside defendant’s presence here: whether defendant had placed character in issue. Accord, Smith v. State , 319 Ga.App. 590, 737 S.E.2d 700 (January 25, 2013) (no prejudice where defendant excluded from “several bench conferences … and it appears that the court and counsel discussed either housekeeping matters or the merits of evidentiary objections. The objections and the court's rulings on those objections were made in the defendant's presence and are preserved in the trial transcript.”). Williams v. State, 311 Ga.App. 152, 715 S.E.2d 440 (July 6, 2011). No error in order for restitution, entered after defendant’s sentence for criminal trespass. Defendant waived appearance at restitution hearing by failing to attend. Notice of the hearing was properly served on defense counsel. Counsel appeared, but could give no explanation for defendant’s absence. “ See, e.g., Yancey v. State, 219 Ga.App. 116, 116 (464 S.E.2d 245) (1995) (‘[T]he burden of determining the cause of the defendant's absence [is] on his counsel, not on the trial judge.’).” Brown v. State, 310 Ga.App. 285, 712 S.E.2d 521 (June 9, 2011). Vehicular homicide conviction affirmed; defendant’s right to be present was not violated when “Brown's counsel and the prosecutor engaged in a short colloquy regarding a question received from the jury during deliberations asking whether the jury could receive extra copies of documents they were already reviewing, and agreed on the number of copies to send. A defendant's constitutional 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.’ Huff v. State, 274 Ga. 110, 111 (549 S.E.2d 370) (2001) (punctuation and citation omitted). Because in this instance nothing of substance occurred to which Brown could have made a meaningful contribution, his right to be present was not violated. Barrett v. State, 275 Ga. 669, 671 (571 S.E.2d 803) (2002). Trial counsel was not ineffective for engaging in this colloquy when Brown was not present.” Ward v. State, 288 Ga. 641, 706 S.E.2d 430 (February 28, 2011). Defendants’ murder convictions reversed where trial court excused juror outside defendants’ presence and without first consulting with counsel. Excusal took place at lunch recess, between closing arguments; counsel only learned of the excusal after it had occurred and after juror had already left. Court excused juror after ex parte conversation with her because she was “upset” and “couldn’t focus.” “We have acknowledged 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.’ Sammons v. State, 279 Ga. 386, 387(2) (612 S.E.2d 785) (2005). “Thus, where the accused is involuntarily absent from the proceedings, the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury.” Pennie [ v. State, 271 Ga. 419, 421(1) (520 S.E.2d 448) (1999)], citing Hanifa v. State, 269 Ga. 797(6) (505 S.E.2d 731) (1998).” Neither counsel objected, but nothing in the record showed any acquiescence, waiver or consent from either defendant. “Although neither counsel objected to the court's action, such inaction on the part of counsel does not constitute a waiver for their clients. See Russell v. State, 230 Ga.App. 546, 547(1) (497 S.E.2d 36) (1998) (‘“[e]ven though defense counsel was present in [appellant's] absence and made no objection, this does not waive the right or prevent error from being asserted on appeal”’), citing Wilson [ v. State, 212 Ga. 73 (90 S.E.2d 557) (1955)]. As appellants' rights to be present were violated and their absence was neither consented to nor waived, error would occur unless appellants knowingly acquiesced in a waiver on the part of their attorneys. … Since appellants were not informed of the ex parte excusal of the juror, they could not knowingly