BURCH v. the STATE.
343 Ga. App. 474
| Ga. Ct. App. | 2017Background
- On June 18, 2014, Gwinnett Metro Task Force officers investigated 3991 Lake Pass Lane seeking Kimberly McGinnis, observed her at the house, and later smelled fresh marijuana when Jan Michael Burch answered the door.
- Burch was detained briefly on the porch; McGinnis exited after officers called; K-9 and warrants led to an interior search that recovered 167.25 grams of cocaine, multiple firearms and ammunition, scales, baggies, cell phones, cash, and other indicia of distribution.
- McGinnis later testified she had broken into a relative’s apartment, taken cash, cocaine, and a gun, and placed some items in Burch’s dryer; the State impeached and presented inconsistencies from her jail interview.
- A certified copy of Burch’s 1998 cocaine trafficking conviction was admitted at trial; Burch was convicted by a jury and sentenced to 20 years (10 in confinement). He moved for new trial and appealed.
- The appeal raised three claims: (1) violation of the defendant’s right to be present during jury selection, (2) erroneous admission of prior conviction evidence, and (3) ineffective assistance of counsel. The Court of Appeals reversed based on the presence issue.
Issues
| Issue | Plaintiff's Argument (Burch) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Whether defendant’s right to be present was violated when trial continued during voir dire while he was absent | Trial court conducted critical stages (jury selection and excusal of a juror) in his absence; he did not knowingly waive or acquiesce | Burch voluntarily absented himself and thus waived the right; alternatively counsel’s waiver or subsequent acquiescence cured any absence | Reversed: jeopardy had not attached, waiver inapplicable, and Burch did not acquiesce to counsel’s waiver; he was entitled to be present for juror-excusing/selection decisions |
| Whether waiver principles apply when defendant is free on bond and late to court | Waiver inapplicable because jury not impaneled and sworn (no jeopardy) | Argues voluntary absence while on bond equals waiver | Court: Pollard rule controls — absent jeopardy attaching, voluntary absence does not effect constitutional waiver |
| Whether counsel may waive presence or a defendant can acquiesce to counsel’s waiver by arriving without objection | Burch argues no express or in-presence waiver; he did not know juror was excused so could not acquiesce | State claims counsel may waive and Burch later acquiesced by not objecting when he arrived | Court: counsel’s waiver was not shown to be in Burch’s presence or by express authority; acquiescence requires knowledge — here Burch unaware juror excused; no acquiescence |
| Whether further claimed trial errors should be addressed now | Burch raised prior-conviction admission and ineffective-assistance claims | State urged affirmance of convictions | Court declined to reach these claims because reversal on presence issue made them unlikely to recur on retrial |
Key Cases Cited
- Jackson v. Virginia, 443 U.S. 307 (established sufficiency-of-the-evidence standard)
- Dawson v. State, 283 Ga. 315 (Georgia rule on defendant’s right to be present at critical stages)
- Pollard v. State, 175 Ga. App. 269 (jeopardy-attaches rule for Sixth Amendment waiver by absence)
- Ward v. State, 288 Ga. 641 (acquiescence requires knowledge; defendant entitled to be present for juror-composition changes)
- Winfield v. State, 210 Ga. App. 849 (discussed acquiescence when defendant arrived and failed to object during voir dire)
- Hill v. State, 290 Ga. 493 (discusses voluntary absence and waiver when defendant free on bond)
- Sammons v. State, 279 Ga. 386 (jury selection is a critical stage where presence is required)