Cesari v. the State, 334 Ga. App. 605

After a Georgia Tech altercation, Cesari and Boccia were jointly tried; jury convicted Cesari on armed robbery, aggravated assault, weapon-in-school, and battery counts.
Eyewitnesses and surveillance placed Cesari at the scene; police found a knife on Boccia. Boccia testified; Cesari did not testify at trial.
On day two, the jury was sent out for a short recess; Cesari voluntarily left the courtroom and did not promptly return. The court issued a bench warrant when he remained missing.
About 1½ hours later Cesari returned and asked to re-enter; counsel expressed concern he might be intoxicated and requested he be held outside. The court initially agreed but later allowed him in after a recess.
Cesari missed part of Boccia’s cross-examination while he was kept outside; Cesari testified at the new-trial hearing he could not hear proceedings and there was no evidence he waived presence or was disruptive on return.
The Court of Appeals reversed and remanded, holding Cesari’s right to be present under the Georgia Constitution was violated when he was excluded after attempting to return.

Issue	Cesari's Argument	State's Argument	Held
Whether Cesari was denied his constitutional right to be present at a critical stage when he was kept outside after returning during trial	Cesari argued he regained the right to be present upon return and did not acquiesce in any waiver; exclusion violated Georgia Constitution and mandates reversal	State argued Cesari voluntarily absented himself and counsel’s conduct (and need to prevent disruption/Confrontation Clause concerns) justified delaying or waiving his readmission	Court held Cesari’s exclusion after he attempted to return denied his Georgia Constitutional right to be present; absence of waiver or disruptive conduct required reversal and remand for new trial

Jackson v. Virginia, 443 U.S. 307 (standard for reviewing sufficiency of the evidence)
Illinois v. Allen, 397 U.S. 337 (defendant may lose right to be present for disruptive behavior)
Peterson v. State, 284 Ga. 275 (Ga. Const. right to be present is presumed prejudicial if violated; not subject to harmless-error review)
Dawson v. State, 283 Ga. 315 (right to be present applies to presentation of testimony)
Fletcher v. State, 252 Ga. 498 (defendant may reclaim right to be present if willing to conduct himself properly)
Allen v. State, 199 Ga. App. 365 (waiver of right to be present may be found where defendant acquiesces or counsel waives in defendant’s presence)