Nesby v. State, 310 Ga. 757

Background

On April 12, 2017, Javian Nesby encountered Jordan Morris at a gas station; Nesby shot Morris, who died from a gunshot wound to the neck. Nesby claimed self-defense based on an earlier incident involving the same men.
Surveillance and eyewitness testimony showed Nesby running with a large gun and firing at Morris; the videos did not show Morris firing at Nesby.
A DeKalb County grand jury indicted Nesby (and co-defendant Michael Grier) on multiple counts including malice murder, felony murder, aggravated assault, and firearm-possession offenses; a jury convicted Nesby on all counts charged against him.
The trial court sentenced Nesby to life without parole on malice murder; some counts were merged or vacated by operation of law; concurrent and consecutive terms were imposed on firearm counts.
Nesby moved for a new trial, arguing the trial court conducted numerous bench conferences outside his presence in violation of his Georgia Constitutional right to be present; he also later noted a scrivener’s error on his sentencing form describing Count 6.
The Supreme Court of Georgia affirmed the convictions, rejecting the right-to-be-present claim (finding the conferences were either noncritical or acquiesced to) and remanded solely to correct the clerical error on the sentencing form for Count 6.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Right to be present at bench conferences during voir dire and trial	Nesby: bench conferences outside his presence violated his Georgia Constitutional right to be present at critical stages	State: conferences involved legal, logistical, or housekeeping matters that do not implicate the right; no prejudice shown	Court: affirmed — conferences did not implicate the right (or defendant acquiesced); no new trial required
Whether untranscribed bench conferences require reversal	Nesby: absence of transcript means we cannot determine that matters were noncritical; warrants new trial	State: mere speculation cannot support new trial; record shows defendant heard relevant matters and counsel addressed them	Court: speculative claim insufficient; court credited counsel’s testimony that issues were discussed with Nesby; no reversal
Waiver/acquiescence of right to be present	Nesby: argued he was absent from bench conferences and thus deprived of presence	State: defendant acquiesced/waived the right by remaining silent, being present for related proceedings, and counsel’s conduct	Held: defendant acquiesced; waiver principles apply and foreclose relief
Sentencing scrivener’s error on Count 6	Nesby: written sentence misstates Count 6 as possession by a convicted felon though indictment charged first-offender probationer	State: error is clerical and did not affect oral pronouncement or actual sentence	Court: remanded to correct clerical error on written sentence (harmless to sentence but must be fixed)

Key Cases Cited

Zamora v. State, 291 Ga. 512 (Georgia Const. right to be present at critical stages)
Huff v. State, 274 Ga. 110 (definition of "critical stage" and when presence is required)
Heywood v. State, 292 Ga. 771 (bench conferences on legal/logistical matters typically do not implicate right)
Brewner v. State, 302 Ga. 6 (absence from legal bench conferences does not violate right to be present)
Parks v. State, 275 Ga. 320 (dismissal of jurors and evidentiary sidebars do not necessarily implicate right)
Pennie v. State, 271 Ga. 419 (waiver of right to be present must be made in presence of defendant or by express authority/acquiescence)
Jackson v. State, 278 Ga. 235 (silence and counsel’s lack of objection can constitute acquiescence)
Fuller v. State, 277 Ga. 505 (failure to object after being informed of out-of-court communications waives claim)
Hanifa v. State, 269 Ga. 797 (defendant waived right by not objecting after being informed of judge’s off-the-record communications)
Burney v. State, 299 Ga. 813 (right to be present belongs to defendant but may be relinquished)