☢ test - Í

Bridges v. State, 286 Ga. 535, 690 S.E.2d 136 (January 25, 2010). Malice murder and related convictions affirmed. Did instructions to jury pool violate defendant’s right to be present? Question not reached because no objection at trial; raised here in context of ineffective assistance of counsel for failure to object. If raised directly, violation of right to be present requires reversal without regard to prejudice, under the Georgia constitution (but not the U.S. Constitution). Raised on issue of ineffective assistance, however, prejudice must be shown, and no prejudice here. Defendant’s capital murder prosecution was the only case on the calendar, and defendant thus contends that instructions to the array amounted to instructions to his jury. Charges here “fully informed the jurors on intent, the presumption of innocence, and the State's burden of proof.” Mims v. State, 301 Ga.App. 436, 687 S.E.2d 670 (December 4, 2009). Defendant’s convictions for child molestation and related offenses affirmed; any objection to response to jury’s question during deliberations was waived by failure to object when defendant became aware of it. “In this regard, the record shows that during deliberations, the jury sent the judge a note asking when Mims was charged with the offenses in question. The trial court met with defense counsel and the prosecutor in chambers, and the attorneys agreed that the court would send a note back saying, ‘The evidence is closed. You must decide this case based upon the evidence already presented.’ After sending this note to the jury, the trial court put the matter on the record and ascertained that there were no objections to the procedure.” “Contrary to Mims's assertions in his brief, the record shows that, before the jury returned its verdict, Mims was aware of the allegedly improper communication between the judge and the jury and failed to object. Accordingly, Mims has waived appellate review of the issue.” Compare Engle (March 21, 2008), below. Thomas v. State, 300 Ga.App. 265, 684 S.E.2d 391 (September 29, 2009). Drug trafficking and related convictions affirmed; no violation of defendant’s right to presence at critical stages of trial. Request for continuance . “[A] court's refusal to continue a trial is not necessarily an event that is material to a case for the purposes of determining whether defendant was absent for a critical stage of the proceedings, i.e., one that materially affected his case. See, e.g., Keen v. State, 164 Ga.App. 81, 86(3) (296 S.E.2d 91) (1982).” Communication with juror. “[T]he court twice met with a juror about the juror's father's medical emergency and subsequent open heart surgery. Both meetings were outside the presence of the State, Thomas, and his counsel. But we find no prejudice. … Here, the matter discussed solely related to the juror's desire to be at the hospital for his father's open heart surgery. An accommodation was made in the scheduling of the last day of the proceedings, which included the charge conference, the jury charge, the closing argument and the deliberations. We conclude that the character of the communication clearly shows that it could not have been prejudicial to the accused.” Walker v. State, 300 Ga.App. 116, 684 S.E.2d 293 (September 17, 2009). Cocaine possession conviction affirmed; evidence supported finding that defendant waived his presence at motion to suppress hearing. Defense counsel announced that defendant had just gotten out of hospital and wanted to waive his appearance at hearing. “The trial court granted the requested waiver and proceeded with the hearing in Walker's absence. Walker objected to his absence for the first time in his amended motion for new trial.” “Trial counsel's announcement on the record indicated that the waiver of Walker's presence was being made with Walker's express authority and at Walker's own request. The burden therefore was upon Walker to present contrary evidence showing that his rights were violated and that he objected to the procedure at the first opportunity. See Harwell v. England, 234 Ga. 640, 641(1) (217 S.E.2d 154) (1975) (‘The burden is [defendant's] to show the ... court that his rights were violated, and his allegations in this regard are not sufficient to show such a violation.’). [Cit.] Significantly, Walker did not testify at the motion for new trial hearing or present any other competent evidence to contradict his trial counsel's representations regarding the requested waiver. Nor did Walker present any evidence establishing when he learned of the alleged violation to show that there was no acquiescence in the waiver and that he objected at the first opportunity. See Harwell, 234 Ga. at 641(1). As such, Walker has failed to meet his burden to show error by the record as to this claim. [Cit.]” Howard v. State, 298 Ga.App. 98, 679 S.E.2d 104 (May 21, 2009). Armed robbery and related convictions affirmed. Trial court did not improperly comment on defendant’s absence from second day of his trial: “the trial court informed the jury that, ‘the defendant has not returned this morning. And because his absence is unexplained and I have no basis upon which to believe there was an emergency or anything like that, we will proceed without his being present. Which is the legal thing to do in our state.’” “The statement did not express an opinion about whether the evidence had proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty. See Flantroy v. State, 231 Ga.App. 744, 746(3) (501 S.E.2d 10) (1998). Moreover, the court's statements were appropriate under the circumstances as they were intended to explain Howard's absence from the second day of trial. See Williams v.