Brooks v. State
This text of 519 S.E.2d 907 (Brooks v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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The appellant, Christopher Brooks, was convicted of the malice murder of Derrick Brown and of violating the Georgia Controlled Substances Act.1 On appeal, Brooks contends, among other things, that the trial court erred by conducting a portion of his trial outside his presence, and that this error requires that his convictions be reversed. We agree, and therefore reverse Brooks’s convictions.
1. Having reviewed the record in the light most favorable to the verdict, we conclude that a rational trier of fact would have been authorized to find that Brooks shot the victim during an attempt to buy drugs from him, and that the evidence is sufficient to support the convictions.2
2. Brooks contends that he is entitled to a new trial because a portion of his trial was conducted outside his presence. For the reasons that follow, we agree.
The record reveals that Brooks was not present at two in-chambers conferences at which the judge, the prosecutor, and Brooks’s defense counsel struck prospective jurors for cause, discussed and resolved defense counsel’s Batson challenge, and conducted a portion of the jury strikes. It is clear that Brooks had a right under the Georgia Constitution to be present at these trial proceed[457]*457ings.3 A defendant’s right to be present, however, may be personally waived by the defendant or by defendant’s counsel.4 For there to be a waiver by defendant’s counsel, the waiver must be made in the defendant’s presence or with his express permission, or else the waiver must be subsequently acquiesced in by the defendant.5 In the present case, the record does not support a conclusion that Brooks personally waived his right to be present or that it was waived by his counsel under any of the foregoing tests. Moreover, both this Court and the Court of Appeals have reversed numerous cases based upon the defendant’s absence from parts of the trial that are comparable to the parts from which Brooks was absent in the present case.6 Under the authority of these cases, we must reverse Brooks’s conviction.
3. Brooks also contends that the trial court erred in admitting pre-autopsy photographs into evidence. More specifically, Brooks contends that the trial court admitted the photographs because it erroneously believed that it had no discretion to exclude pre-autopsy photographs on the ground that their probative value was outweighed by their prejudicial impact. Because we must reverse Brooks’s conviction for the reasons given in Division 2, supra, it is unnecessary to determine whether or not the trial court in fact exercised discretion in admitting the photographs. For purposes of retrial, however, we note that pre-autopsy photographs are subject to the objection that their prejudicial impact outweighs any probative value, and that “[w]hen . . . faced with such an objection, [a trial court] must exercise its discretion in determining admissibility.”7
4. Because of our holding in Division 2 of this opinion, we need not address Brooks’s remaining contention.
Judgment reversed.
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Cite This Page — Counsel Stack
519 S.E.2d 907, 271 Ga. 456, 99 Fulton County D. Rep. 3437, 1999 Ga. LEXIS 686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brooks-v-state-ga-1999.