☢ test - Í

2. DEFENDANT DISRUPTIVE Seminal case: Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)

Gipson v. State, 332 Ga.App. 309, 772 S.E.2d 402 (May 6, 2015). Aggravated assault and related convictions affirmed; no ineffective assistance where trial counsel didn’t move for a mistrial upon defendant’s temporary removal from the courtroom for disruptive behavior. Defendant became upset and disruptive during the testimony of a State’s witness. After warning him that he could be removed if he didn’t stop, trial court did briefly remove defendant, instructing the jury “not to hold any of that against Mr. Gipson.” “The trial court did not err by briefly removing Gipson from the courtroom as a result of his outburst after he was warned about his behavior. See West v. State, 271 Ga.App. 522, 523, 610 S.E.2d 159 (2005).” Weaver v. State, 288 Ga. 540, 705 S.E.2d 627 (February 7, 2011). Murder and related convictions affirmed; no abuse of discretion in removing disruptive defendant from courtroom. “Appellant argues that, instead of bringing him back into the courtroom to inquire whether he intended to correct his conduct and wished to be present, the trial court erroneously put the burden on defense counsel to determine whether Appellant wished to reclaim his right to be present. Upon request by the trial court, defense counsel repeatedly visited Appellant in jail and informed the court that Appellant did not wish to appear in the courtroom, even when the court met just two doors down from his cell. See Richards v. State, 254 Ga.App. 708, 711(2), 563 S.E.2d 551 (2002). Furthermore, the trial court had firsthand knowledge of how difficult, explosive, and violent Appellant could be, and the court also properly consulted with the sheriff regarding the serious safety issues in bringing Appellant into the courtroom. See State v. Jones, 281 Conn. 613, 916 A.2d 17, 36-37(I)(B) (Conn., 2007). The conduct of a defendant may be such that either the initial warning or returning him to the courtroom ‘would be a totally useless act.’ State v. Fletcher, [252 Ga. 498, 501, 314 S.E.2d 888 (1984)] We also ‘do not believe it would be reasonable to impose upon a trial judge the duty to make moment-by-moment inquiries as to whether the defendant's state is such that a [return to the courtroom] could be [allowed].’ State v. Fletcher, supra. Instead, the accused's right to be present at all stages of trial ‘can be waived if the accused's counsel makes the waiver in the accused's presence, or with his or her express authority, or if the accused subsequently acquiesces to the waiver made by counsel. [Cits.]’ Williams v. State, 251 Ga. 749, 798(11), 312 S.E.2d 40 (1983). See also Smith v. State, 284 Ga. 599, 608(4), 669 S.E.2d 98 (2008). The [ Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970)] court did not set forth specific requirements for inviting a disruptive defendant to reclaim his right to be present. State v. Chapple, 145 Wash.2d 310, 36 P.3d 1025, 1032(I) (Wash., 2001) (En Banc). ‘[L]ower courts have interpreted this right to require varying degrees of trial court involvement in the reclamation. We hold that the trial court's requirement that defense counsel speak with the defendant and report back to the court was appropriate in these circumstances and adequate to give the defendant an opportunity to reclaim his right to return. [In fact,] [i]t might be inappropriate for a trial court to insinuate into a decision to return and thus communication through defense counsel is preferable.’ State v. Chapple, supra at 1033(I). See also Bailey v. State, 249 Ga. 535, 539(6), 291 S.E.2d 704 (1982). Under all of the circumstances, we find that the trial court did not abuse its discretion in proceeding with trial in Appellant's absence. See Richards v. State, supra at 712(2), 563 S.E.2d 551.” Arnold v. State, 284 Ga.App. 598, 645 S.E.2d 68 (March 28, 2007). Armed robbery and related convictions affirmed. Discussion of the evidence between court and counsel while jury deliberated was not a “critical stage of the proceedings.” Defendant’s right to be present was not implicated when trial court had defendant removed from the courtroom for being disruptive. Rogers v. State, 271 Ga.App. 698, 610 S.E.2d 679 (February 18, 2005). Rape and related convictions affirmed. Trial court did not abuse its discretion in “ordering that a duct tape gag be placed on Rogers during a portion of the proceedings” where “Rogers had been warned on numerous occasions to cease making numerous and repetitive motions and inappropriate remarks during the proceedings, which the trial court characterized on the record as an attempt to obstruct and to interfere with the administration of the trial. The trial court also noted in the order denying Rogers’ motion for new trial that the alternative of removing Rogers from the courtroom was not available because Rogers was proceeding pro se at that stage of the proceedings, and that a contempt sanction would have been meaningless to Rogers, who was facing a sentence of life without parole. The record also demonstrates that the gag was kept in place only during a short portion of the proceedings, and was removed and not replaced after the trial court informed Rogers that the gag would be left off if he abided by the court’s instructions and did not make inappropriate comments in front of the jury. Lastly, the trial court instructed the jury that no harmful inference was to be made based on her decision to have the gag placed on Rogers.”