BURCH v. the STATE.

FIRST DIVISION
BARNES, P. J.,
MCMILLIAN and MERCIER, JJ.

NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules

October 27, 2017

In the Court of Appeals of Georgia
A17A1027. BURCH v. THE STATE.

MCMILLIAN, Judge.

Jan Michael Burch was indicted, along with co-defendant Kimberly McGinnis,1

for one count of trafficking in cocaine (OCGA § 16-13-31 (a)), possession of

marijuana with intent to distribute (OCGA § 16-13-30 (j)), and possession of a

firearm by a convicted felon (OCGA § 16-11-131). Following a jury trial in

November 2015, Burch was found guilty of trafficking in cocaine, possession of

marijuana, and possession of a firearm by a convicted felon. He was sentenced to a

total of 20 years, with the first 10 years to be served in confinement. The trial court

1
McGinnis was also charged with one count of first degree burglary (OCGA
§ 16-7-1 (b)). Prior to Burch’s trial, McGinnis entered a guilty plea to the narcotics
charges and was sentenced to twenty years, to serve ten. She is not a party to this
appeal.
denied Burch’s motion for new trial, as amended, following a hearing. Burch now

appeals, asserting (1) the trial court erred in conducting a critical stage of the trial

outside of his presence; (2) the trial court erred in admitting evidence of a prior

conviction; and (3) that he received ineffective assistance of trial counsel. For the

reasons that follow, we must reverse Burch’s convictions.

Viewed in the light most favorable to the jury verdict,2 the record shows that

on June 18, 2014 an investigator working with the Gwinnett Metro Task Force3 was

assigned to observe the property at 3991 Lake Pass Lane in Suwanee for the purposes

of locating McGinnis, who was a suspect in a burglary committed earlier that day. At

approximately 3:00 p.m., he saw McGinnis walk out of the house, take a white plastic

bag out of a vehicle, and then go back inside the house. He then alerted other officers

that McGinnis had been located. A detective who was also assigned to the Gwinnett

Metro Task Force responded to the scene at approximately 5:00 p.m. to conduct a

knock and talk. Burch opened the front door, and the detective noticed a strong smell

of fresh marijuana emanating from the house.

2
Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
3
This task force is comprised of representatives from various law enforcement
agencies to work on narcotics crimes within Gwinnett County.

2
 When the detective asked to speak with Burch, Burch stepped outside and sat

on the front porch. He asked Burch if McGinnis was inside, and Burch responded that

she had not been there all day. The detective then asked Burch if he were to obtain

a warrant for McGinnis’ arrest, would he be harboring a fugitive inside his house.

Burch then became visibly agitated and conceded that McGinnis had been there

earlier but claimed that she was no longer inside. At that point, Burch was placed in

handcuffs and detained for the officers’ safety while they called inside through the

door for McGinnis to come outside, which she did after a few moments. Officers then

obtained a search warrant for the exterior of the house. Based on positive alerts from

a K-9 exterior search, a second search warrant was obtained for the interior of the

house.

While executing the interior search warrant, officers discovered a loaded pistol

in a dresser drawer near the front door, another handgun inside a dryer, two rifles

located in the lower floor of the house, and several types of ammunition, including

some near a credit card with Burch’s name on it. Officers also found $780 in cash on

a table, four cell phones , a firearm holster, two small digital scales, one large digital

scale, two boxes of sandwich baggies, a glass marijuana smoking pipe, a total of

seven grams of marijuana in various locations in the house, and 167.25 grams of

3
cocaine with a purity level of 57.7 percent.4 Officers also located four vehicles at the

residence, but found no information that either Burch or McGinnis had full time

employment. At some point during the search, the investigator joined Burch where

he was being detained in a police vehicle, and without having asked him anything,

Burch stated “the only thing [you are] going to find in there is a bowl and a couple

of buds.”5

At trial, the State presented evidence that the two smaller digital scales found

in Burch’s home are commonly seen in narcotics investigations, whereas the larger

scale is generally only found in relation to larger quantities of narcotics on a

distribution level. The investigator also explained to the jury that, based on his

experience investigating narcotics, there are certain items that indicate someone

possesses drugs that are intended for more than just personal use, including scales,

multiple cell phones, weapons, the presence of loose money, and sandwich bags in

bathrooms and dresser drawers.

4
The detective estimated the street value of the cocaine to be approximately
$9,500 to $10,500.
5
Based on his extensive experience investigating narcotics, the investigator
understood a “bowl” to mean a device used with marijuana and “buds” to mean a
small amount of the drug.

4
 Burch called McGinnis to testify on his behalf at trial. According to McGinnis,

on June 18, 2014, she broke into her cousin’s apartment to retrieve $15,000 she

claimed he had stolen from her. She was able to locate $1000 in cash that she alleged

was hers and decided to also take some cocaine and a gun. After she arrived back at

Burch’s house6 with the items, the police began knocking on the door. She then threw

the cocaine in the kitchen trash can and put the gun and two bags of weed that she

claims belonged to her in the dryer. She acknowledged that she initially denied to

officers that she had broken into her cousin’s home, but later admitted to breaking

into the apartment, although denied taking anything. She admitted at trial that she

knew Burch was a convicted drug trafficker but maintained that he had nothing to do

with the possession of cocaine. McGinnis also claimed that, at the time of his arrest,

Burch was in the process of getting a divorce and some of the property still in the

house belonged to his wife, including several guns.7

The State then recalled the detective in rebuttal. He testified that he interviewed

McGinnis the next day while she was in jail, and she admitted to breaking into her

6
She and Burch had been dating for approximately three years, and she
occasionally stayed with him at his house.
7
She also claimed that one of the guns in the house belonged to Burch’s
mother.

5
cousin’s apartment to retrieve money. She did not mention taking any cocaine or a

firearm at that time. He also testified that he had seen no indication that she ever

reported the money that was allegedly stolen from her. At one point when they spoke

with her in the jail, she told them “I’ll take that.” It was his belief that she eventually

claimed responsibility for the drugs because she felt remorse over the fact that the

only reason law enforcement came to Burch’s house that day was to look for her in

relation to the burglary report. The detective also testified that despite her subsequent

claim that the drugs belonged to her, McGinnis was not able to tell him how much the

cocaine weighed, how much she had purchased it for, or how much it was worth. The

State also introduced at trial a certified copy of Burch’s 1998 conviction for

trafficking in cocaine.

1. Although not enumerated as error, we find the evidence was sufficient to

enable a rational trier of fact to conclude beyond a reasonable doubt that Burch was

guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U.S. 307

(99 SCt 2781, 61 LE2d 560) (1979).

2. In his first enumeration of error, Burch asserts that his right to be present at

all stages of the trial was violated when the trial court conducted a portion of the jury

selection outside his presence. We are constrained to agree.

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 Jury selection began in this case on November 17, 2015, and carried over into

the following morning. On the second day, the trial court began by noting that Burch,

along with one of the potential jurors, was not yet present. The trial court also

informed counsel that one of the potential jurors had notified the bailiff at the end of

the previous day that she was in so much pain from a recent surgery that she did not

think she would be able to return. The bailiff told her to remain by her phone and that

someone would call her if she had to return. The trial court proposed selecting a jury

panel without that juror, and counsel agreed. The trial court then stated that its

preference would be to go ahead and instruct the jurors that Burch has contacted his

attorney, he is having trouble finding a parking spot, and he will come into the

courtroom as soon as he is able to get there. Defense counsel stated, “That’ll be fine,

Judge.” At that point the jury panel was brought in and voir dire resumed after the

trial court explained why Burch was not present and assuring them that “[i]t’s all

known to the Court and agreed to with the attorneys in terms of going ahead and

starting without him actually being here.” The State then began its examination of

prospective juror number 36.8

8
The transcript does not indicate at which point Burch entered the courtroom,
but Burch later testified at his motion for new trial hearing that he arrived 20-30
minutes late, “tops.”

7
 At the new trial hearing, Burch’s trial counsel testified that Burch had called

him that morning and told him he was circling the parking lot looking for a parking

spot. He told his client to get there as soon as he could, and Burch arrived 10-15

minutes late. He testified that he did not object to moving forward without Burch

because they were not up to the point where he would discuss with Burch who should

be put on the jury panel or not.

Embodied in the constitutional right to the courts under Art. I,
Sec. I, Par. XII of the Georgia Constitution of 1983 is the right of the
criminal defendant to be present at all proceedings had against him at
the trial of his case. The right to be present attaches at any stage of a
criminal proceeding that is critical to its outcome if the defendant’s
presence would contribute to the fairness of the procedure. This Court
has determined that a critical stage in a criminal prosecution is one in
which a defendant’s rights may be lost, defenses waived, privileges
claimed or waived, or one in which the outcome of the case is
substantially affected in some other way.

(Citations and punctuation omitted.) Dawson v. State, 283 Ga. 315, 321-22 (5) (658

SE2d 755) (2008). It is well established that a defendant’s right to be present at every

stage of the trial extends to selection of the jury. See Sammons v. State, 279 Ga. 386,

387 (2), n.7 (612 SE2d 785) (2005) (citing cases).

8
 However, the State argues that Burch waived his right to be present when he

voluntarily absented himself from trial after he clearly knew the proceedings had

begun. It is generally true that if a criminal defendant is free on bond, such as Burch

was here, he may waive his right to be present by his voluntary absence from trial.

See Hill v. State, 290 Ga. 493, 495 (2) (722 SE2d 708) (2012) (finding that defendant

voluntarily absented himself from court since he was free on bail and knew

proceedings had begun and defendant therefore waived his right to be present at trial).

However, in Pollard v. State, 175 Ga. App. 269, 270 (333 SE2d 152) (1985), this

Court adopted the rule that “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 proceeding,” and that “in the

absence of jeopardy attaching, the waiver principles are inapplicable.” Jeopardy

attaches when, “in a court of competent jurisdiction with a sufficient indictment, [the

defendant] has been arraigned, has pled and a jury has been impaneled and sworn.”

Id.

The record in this case clearly shows that the jury had not been impaneled and

sworn before Burch absented himself from the proceedings, so jeopardy had not yet

attached. Thus, as in Pollard and its progeny, waiver principles are inapplicable in

9
this case. See, e.g., Stacey v. State, 254 Ga. App. 461, 462 (1) (562 SE2d 806) (2002)

(in the absence of jeopardy attaching, waiver principles are inapplicable and

defendant is entitled to a new trial). See also LaGon v. State, 334 Ga. App. 14, 23-24

(3) (778 SE2d 32) (2015) (when a criminal defendant “free on bond or on his own

recognizance fails to appear at the start of trial, the trial court cannot try the defendant

in absentia; instead the trial court must delay the start of trial and rely on other

sanctions such as bench warrants and bond forfeitures”) (citations omitted).

The State maintains, nonetheless, that under Georgia law, counsel may waive

his client’s right to be present if the waiver is made either in the defendant’s presence

or by his express authority, or if the waiver is subsequently acquiesced in by him. See

Heywood v. State, 292 Ga. 771, 775 (3) (743 SE2d 12) (2013). And, according to the

State, Burch acquiesced in his counsel’s waiver when he arrived during voir dire and

proceeded without objecting.

Under Pollard, the State is incorrect that Burch may waive his right to be

present merely by his voluntary absence from the proceedings, and the record does

not show that the attorney’s waiver was in Burch’s presence or by his express

authority. However, we note that this Court has previously found that a defendant can

acquiesce in his counsel’s waiver of his right to be present during voir dire. See

10
Winfield v. State, 210 Ga. App. 849, 851 (1) (437 SE2d 849) (1993). We find Winfield

to be distinguishable and the issue of acquiescence controlled by Ward v. State, 288

Ga. 641, 646 (4) (706 SE2d 430) (2011). In Winfield, the defendant notified his

counsel on the first day of trial that he was experiencing car trouble and would be

arriving late. The trial court then proceeded with voir dire without objection from

defendant’s counsel. The defendant eventually arrived during voir dire of the fourth

panel of prospective jurors and participated in the selection of the jury without

objection. We found that the defendant acquiesced in his counsel’s apparent waiver

when he failed to object to voir dire having proceeded in his absence and

distinguished the case from Pollard, where the defendant absented himself before

jeopardy attached and never returned. Id. at 851 (1).

In contrast, in Ward, our Supreme Court held that the co-defendants had not

knowingly acquiesced in a waiver on the part of their attorneys to the dismissal of a

juror because the co-defendants were not informed that the juror had been dismissed

ex parte in their absence. Ward, 288 Ga. at 646 (4). Acquiescence “means a tacit

consent to acts or conditions, and implies a knowledge of those things which are

acquiesced in. One cannot acquiesce in a wrong while ignorant that it had been

committed.” Id. Here, it is not clear from the record when Burch entered the

11
proceedings, but what is clear is that in his absence the trial court discussed with

counsel about excusing a juror and eventually released her from returning to court.

Burch testified at his motion for new trial hearing that he was not aware that the juror

had been excused, and his trial counsel likewise testified that he could not recall

notifying Burch of that fact. Accordingly, we conclude that Burch is entitled to a new

trial because his right to be present was violated. See Ward, 288 Ga. at 645 (4)

(proceedings at which the jury composition is selected or changed are critical stages

at which the defendant is entitled to be present).

3. We do not reach Burch’s remaining enumerations of error, as the alleged

errors complained of are not likely to reoccur upon any retrial of the case.

Judgment reversed. Barnes, P. J., and Mercier, J., concur.

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