☢ test - Í

room, after the jury charge conference, was for the purpose of informing the jury that proceedings would continue beyond 5:00 p.m. and suggesting they make whatever arrangements were necessary for staying late. The second visit, after closing argument, was to explain to the jurors the verdict form jointly drafted by the prosecuting attorney and defense counsel. At the conclusion of each communication, the trial judge summarized the communication on the record and both the prosecuting attorney and defense counsel agreed with the trial judge’s summary.” “While the first communication in the jury room concerned a matter ‘relating to the comfort and convenience of the jury,’ and was thus, as Fuller concedes, not prejudicial, we cannot consider the communication regarding the verdict form to be so innocuous,” but defendant deemed to have consented to the procedure by not objecting when court indicated on record intent to do so prior to the event. Based on Hanifa v. State, 269 Ga. 797(6), 505 S.E.2d 731 (1998). Accord, Berry v. State , 274 Ga.App. 366, 618 S.E.2d 72 (July 12, 2005) (Where counsel, in defendant’s presence but without his express consent, consented to the judge stepping into the jury room to deliver simple answers to jury’s simple questions, defendant waived any objection to the communications to be made outside his presence by failing to voice the objection at the time). Dill v. State, 277 Ga. 150, 587 S.E.2d 56 (October 6, 2003). Malice murder and related convictions reversed, based on trial court’s refusal to fully respond to jury’s request for clarification on issues of presence and knowledge. Dicta: “the law requires all communications between the trial judge and the jury to take place in the open courtroom in the defendant’s presence.” Here, “the trial court and counsel went into the jury room to instruct the jury not to concern itself with punishment.” Parks v. State, 275 Ga. 320, 565 S.E.2d 447 (June 10, 2002). Malice murder and related convictions affirmed. Defendant’s right to be present was not violated when he was excluded from bench conferences discussing legal and trial logistical issues, where he was present in court and counsel was included in the bench conference. Defendant could not have contributed meaningfully to conferences and “there did not exist a ‘reasonably substantial relation’ between Parks’s presence and his opportunity to defend against the charges against him.” Accord, Bethune v. State , 291 Ga.App. 674, 662 S.E.2d 774 (May 23, 2008) (defendant’s right to be present not violated where trial court held discussions on legal issues with counsel, then realized defendant was not present, reviewed the discussion with defendant when he returned to the courtroom without having ruled on pending motions); Lyde (August 23, 2011), above; Campbell (March 18, 2013), above; Johnson (September 23, 2013), above; Daughtie (June 1, 2015), above (absence from “housekeeping” bench conference about redactions of an exhibit didn’t violate defendant’s right to be present); Heard v. State , 334 Ga.App. 399, 779 S.E.2d 415 (November 10, 2015). Stacey v. State, 254 Ga.App. 461, 562 S.E.2d 806 (March 26, 2002). Burglary conviction reversed. Defendant and his attorney conducted voir dire and, when court adjourned for the night, a jury had been selected but not sworn. Before adjourning, the trial judge personally advised defendant, his counsel, and all persons involved to return the next morning to commence trial. Defendant failed to return. The court ordered trial to proceed on the ground that defendant voluntarily absented himself from trial. A bench warrant was issued and the jury was sworn. The jury returned a guilty verdict and the court-imposed sentence. Held, defendant entitled to a new trial because, for Sixth Amendment waiver purposes, trial begins when jeopardy attaches, and thereafter a defendant can waive his constitutional right of confrontation by voluntarily absenting himself from the proceedings. Jeopardy attaches when a defendant comes before a court of competent jurisdiction with a sufficient indictment, enters a plea, and a jury is empanelled and sworn. Here, the jury had not been empanelled and sworn (emphasis included) before defendant’s disappearance, so jeopardy had not attached and the trial had not begun. In the absence of jeopardy attaching, the waiver principles are inapplicable. Riley v. State, 252 Ga.App. 781, 556 S.E.2d 917 (December 5, 2001). Defendant’s burglary conviction reversed, entitling him to new trial. Attorneys argued motions before trial court and the court recessed for lunch. After the lunch break, defendant failed to return to the court room. Because of defendant’s absence, the trial court found that defendant had waived his Sixth Amendment rights, voir dire was conducted, a jury chosen, and the trial conducted. Held, a defendant does not waive his Sixth Amendment rights by voluntarily absenting himself prior to the attachment of jeopardy during his trial and jeopardy can only attach where the jury has been empanelled and sworn before a defendant’s disappearance. In the absence of jeopardy attaching, the waiver principles are inapplicable. Goodman v. State, 251 Ga.App. 350, 553 S.E.2d 179 (July 31, 2001). Conviction for selling cocaine affirmed. Pro se defendant appeared in court on day trial was scheduled and announced ‘not ready.’ Defendant was informed personally by trial court that his jury trial would begin, even in his absence, three days later. When defendant failed to appear, without excuse, on that date, the court conducted the trial without him, and upon conviction by the jury, sentenced him in absentia. Defendant contends that his constitutional rights to be present and to confront witnesses were violated. Held,