314 Ga. 854 FINAL COPY
S22A0511. DRENNON v. THE STATE.
WARREN, Justice.
Appellant Carlos Drennon appeals from his convictions for
malice murder and participation in criminal street gang activity
stemming from the shooting death of Randy Griffin.1 On appeal,
1 Griffin was killed on June 10, 2007. On June 27, 2008, Drennon and 11
other defendants were charged in a 60-count indictment returned by a Fulton County grand jury. Drennon was indicted on 15 counts and was jointly tried with Tiffany Bankston, Maurice Hargrove, Edward Morris, and Daquan Stevens for five crimes arising from the shooting death of Randy Griffin on June 10, 2007: malice murder, conspiracy to commit murder, felony murder predicated on aggravated assault, aggravated assault, and possession of a firearm during the commission of a felony. Those five defendants, along with Vincent Morris (Edward Morris’s brother), were also charged with criminal street gang activity for crimes of violence that occurred between September 2006 and October 2007. In addition, Hargrove, Stevens, and Edward and Vincent Morris were tried on four other counts relating to crimes committed against Griffin and Lacey Magee that occurred on May 22, 2007. In August 2007, before the indictment was returned in the case that is before us now on appeal, Drennon pled guilty to two counts of aggravated assault arising from the May 22, 2007 incident. In May 2009, a jury found Drennon not guilty of the firearm offense but convicted him of the remaining crimes. On May 5, 2009, the trial court sentenced Drennon to life in prison for malice murder and to 15 consecutive years in prison for criminal street gang activity. The felony murder count was vacated by operation of law, and the trial court merged the other counts for Drennon contends, among other things, that the evidence is
insufficient to support his convictions, that the trial court erred in
denying his motion to sever his trial from that of his co-defendants,
and that he was denied his right to be present at trial when he was
not included in certain bench conference discussions.
sentencing purposes. On May 28, 2009, Drennon filed a motion for new trial, which he amended with new counsel in January and September 2015. In 2014, the trial court placed any open counts remaining against Drennon on the dead docket. On January 13, 2020, the trial court denied Drennon’s motion for new trial, as amended. On January 24, 2020, Drennon filed a notice of appeal, and the case was docketed in this Court to the August 2021 term. However, because the counts of the indictment against Drennon that were dead-docketed by the trial court meant that Drennon’s case remained pending in the trial court, he was required to follow the procedures for interlocutory appeal to obtain review of his convictions. See OCGA § 5-6-34 (b); Seals v. State, 311 Ga. 739 (860 SE2d 419) (2021); Spears v. State, 360 Ga. App. 776 (861 SE2d 619) (2021). On August 6, 2021, we dismissed Drennon’s appeal because he failed to follow those procedures. On remand, the State was unwilling to dismiss the unresolved dead- docketed charges. On November 9, 2021, the trial court therefore vacated its January 13, 2020 order denying Drennon’s motion for new trial, entered a new order denying that motion, and granted Drennon a certificate of immediate review. Drennon filed an application for interlocutory appeal, which we granted on December 9, 2021. Drennon thereafter filed a timely notice of appeal, see OCGA § 5-6-34 (b), and the case was docketed in this Court to the April 2022 term and orally argued on April 21, 2022. This Court has already affirmed the convictions of Edward Morris and Stevens, both of whom were convicted of murder, criminal street gang activity, and other crimes. See Morris v. State, 294 Ga. 45 (751 SE2d 74) (2013); Stevens v. State, 286 Ga. 692 (690 SE2d 816) (2010). The Court of Appeals has affirmed the convictions of Vincent Morris for criminal street gang activity and other crimes. See Morris v. State, 322 Ga. App. 682 (746 SE2d 162) (2013). 2 We conclude that the evidence is sufficient to support
Drennon’s convictions for malice murder and for participating in
criminal street gang activity and that the trial court did not fail to
exercise its discretion as the “thirteenth juror” when ruling on the
general grounds of Drennon’s motion for new trial, so we affirm
those parts of the trial court’s judgment. However, because
Drennon’s right-to-be-present claim was raised for the first time on
appeal and because, as more fully explained below, we cannot easily
reject that claim on the existing record, see Champ v. State, 310 Ga.
832, 844 (854 SE2d 706) (2021), we vacate the trial court’s judgment
in part and remand the case for the trial court to hold a hearing and
rule on Drennon’s constitutional claim in the first instance. We
therefore do not address Drennon’s remaining enumerations of
error.
1. Viewed in the light most favorable to the jury’s verdicts, the
evidence presented at trial showed the following. The “International
Robbing Club,” or “IRC,” was “a loosely affiliated group of friends
and associates who planned and executed so-called ‘licks,’ robberies
3 of individuals believed to possess significant amounts of cash, drugs,
jewelry, and other high value items.” Morris v. State, 294 Ga. 45, 46
(751 SE2d 74) (2013). Marciell Easterling, a co-indictee who testified
at Drennon’s trial under an immunity agreement, was present when
the IRC was formed in late 2005 or early 2006. He testified that
Daquan Stevens, Edward Morris, and Jeremy Dunn were original
members of the group and that Drennon, Maurice Hargrove, and
Vincent Morris joined later. According to Easterling, the group
would “hang out” and “plan things” like robberies. He added that the
IRC would get “money, drugs, jewelry, guns[, and] merchandise”
from the robberies. Tiffany Bankston testified that Drennon told her
that he had participated in “licks” with Easterling and Stevens.
Members of the IRC, including Drennon, discussed robbing Griffin
after Edward Morris saw him at a nightclub wearing Breitling-
brand jewelry.
In the early morning hours of May 22, 2007, members of the
IRC received information that Griffin was at a nightclub in Atlanta.
Drennon, Hargrove, and the Morrises drove to the nightclub in one
4 car, while Easterling, Stevens, and a third IRC member, Jonathon
Collins, drove there in a second car. Members of the IRC knew where
Griffin lived, and once he left the nightclub, Drennon’s group drove
ahead of Griffin to wait for him at his residence. Meanwhile,
Easterling’s group followed Griffin. “When Griffin and [Lacey]
Magee, his girlfriend, pulled into Griffin’s driveway and exited their
cars, shots were fired at them from a gold Toyota Avalon occupied”
by Drennon’s group. Morris, 294 Ga. at 46. “Magee was shot in the
hand, and Griffin returned fire. The Avalon drove off, with both
Drennon and Vincent Morris having been shot.” Id. Easterling’s
group did not go into Griffin’s condominium complex, but instead
parked on a road near the entrance. After they heard the gunfire in
the complex, they saw a person run across the road. Unsure of who
it was, Easterling, who was driving the car, drove forward. The
person was Griffin, and he ran up to Easterling’s car. Collins told
Griffin to get in, and he did. Panicked and unaware that the
occupants of the car were part of the group trying to rob him, Griffin
told the people in the car that someone had tried to rob him and had
5 shot his girlfriend. Griffin had a gun in his hand. According to
Easterling, the car’s occupants were also carrying guns, but they
were on the floor of the car, so there “wasn’t no way that we could
reach for our gun to do anything to him.” About that time—which
was only about 30 seconds later—the Avalon in which the other
members of the group were riding “skidded out of the parking lot” of
Griffin’s complex. Griffin got out of the car Easterling was driving
and started shooting at the Avalon; he then ran back toward his
condominium. “Following the incident, Magee and Drennon were
treated for their injuries at the same hospital, and Griffin, who had
accompanied Magee to the hospital, identified Drennon as one of
their assailants, leading to Drennon’s arrest.” Id. at 46.
Drennon was in jail based on his arrest for the May 22, 2007
crimes against Griffin and Magee, when “in the early morning hours
of June 10, 2007, Griffin was shot and killed outside Club 112, a
Midtown nightclub.” Id. When Griffin was killed, he was wearing a
Breitling necklace and bracelet.
At trial, Easterling “testified that IRC members . . . had
6 planned Griffin’s murder to retaliate for Drennon’s arrest,” id. at 46-
47, and that
[Easterling] had heard Morris recount how he and others drove to Club 112 on the night of the murder and waited for Griffin to emerge, at which point two of Morris’ confederates fired at Griffin. Morris’ presence at the scene of the murder was corroborated by cell tower triangulation evidence placing Morris’ cell phone at the crime scene at the time of the shooting. In addition, a former girlfriend of Morris told police that Morris had told her he had been present when Griffin was killed and that Hargrove had been the triggerman.
Id. at 47. Bankston, who pled guilty to criminal street gang activity,
testified that she started dating Drennon in 2006 and that they were
engaged to be married at the time of trial. According to Bankston,
when Griffin was robbed in May 2007, Easterling and Stevens told
her that someone had “jumped out too fast” that night, implying that
the group driving with Easterling might have killed Griffin that
night if they had the chance.
Bankston participated in a number of three-way calls with
Drennon and his friends while Drennon was in jail; code words and
phrases were often used during these calls. She testified that, during
7 these calls, Drennon and his friends referred to “watching the news.”
At first, she did not know what they were talking about, but she
later began to understand what Drennon meant when he said that
the “n***** tried to identify me.” Bankston also testified that, on the
day Griffin was killed, Easterling and Stevens came to her house
and told her about the shooting and asked her to tell Drennon.
Bankston testified that she later called Drennon in jail and told him
that “Auntie Monique” had killed her husband at Club 112, which
was “code” that “[Hargrove] shot Randy Griffin.”
While Drennon was in jail between May 22 and June 10, he
frequently initiated calls with his IRC associates. Those calls were
recorded, and many were introduced into evidence at trial. For
example, in a conversation on May 23, Drennon asked Hargrove
“how that other dude was doing” and told Hargrove that he
(Drennon) was “f**ked up” and that “the n***** tried to identify a
n***** and how’s that.” Hargrove responded “be cool and just watch
the news.”
Drennon spoke to Hargrove again on May 27, and Hargrove
8 said, “[w]hy the ho lay up there and flag them and got in the back of
the car with them?” Drennon asked, “[g]ot in the back of the car with
[Easterling]”; Hargrove responded, “yeah,” and said “why the ho lay
up there and go out” and “they still ain’t f**k the ho.” Hargrove
continued, saying that “you ain’t got nothing to worry about, man. .
. . [N]***** like on top of the ho. N***** going to f**k the ho, man.”
Drennon then told Hargrove that he was “sweatin’ that ho” and “I
just got to depend on you. . . . Go on ahead and lay that ho on out for
me.” Hargrove then said, “You already know that. Man, that’s my
word. I’m a f**k the s**t out that ho.”
In another conversation later that night, Drennon told Stevens
that he had been “trying to figure out what’s going on, man, you
know what I’m saying? I’ve been watching the motherf**king news
and s**t, you know what I’m saying. Ain’t s**t going on on the
f**king news.” Stevens reassured Drennon that “that news going to
come up,” and Drennon asked, “when it going to come up,” and later
said “god da*n go get that girl, man, god da*n hurry up.” Stevens
acknowledged that “they need to hurry up”; “n***** just running
9 around here shooting people and get away with it.”
In a conversation that took place from jail on June 2, Drennon
spoke with Edward Morris. Drennon told Edward that, when he was
in the hospital, “some dude came in there and identified me. Talking
about I robbed him.” Drennon then asked Morris if he had “seen the
girl.” Morris responded that “the girl jumped in the car . . . and
everything” and that he would have “slap[ped] that whore in her
f**kin’ mouth.” Morris added that “she hopped” out of the car and
tried to flag other cars down. Drennon then said that, “so you tellin’
me all of that could have been stopped right then and there?” Morris
responded that it “could have been stopped,” and Drennon said that
he did not “even want to talk about it.”
During a June 7 conversation with Easterling from jail,
Drennon asked Easterling if “everything straight,” had “y’all . . .
heard nothing,” and had they “seen ol’ girl.” Easterling responded
that they “ain’t heard nothing” and had not seen “ol’ girl” because
“she had moved” and that they “[g]ot to confirm where she stay at.”
Drennon then said he was “just checking on it.” At trial, Easterling
10 testified about this conversation, explaining that “ol’ girl” was the
name he and Drennon used for Griffin and that he and Drennon had
been discussing Griffin when they discussed “ol’ girl.”
On June 10, at 12:40 p.m., which was after Griffin was shot
and killed, Drennon called Bankston from jail. Bankston told him
that Easterling had called her “about an hour or so ago” and told her
that she needed to “meet up with him.” Drennon told her to “call
[Easterling] and see what’s up.” Bankston called Easterling and
connected Easterling into her call with Drennon. When Drennon
asked Easterling what was going on, Easterling responded that he
could not talk to Drennon at that point; Drennon asked the same
question again. Easterling responded, “Oh s**t you, uh, what y’all
looking at on the TV?” Drennon said, “I need to look at the news.”
Bankston asked Easterling where she was supposed to meet him.
Shortly thereafter, Drennon made a phone call to his father.
Drennon asked his father if he had “watch[ed] the news.” His father
responded that he had not, and Drennon said, “Dang,” “I need you
to tell me that you watched the news.” Drennon’s father then
11 connected Bankston into the call, and Drennon asked her if she had
“made it down there yet.” Bankston responded that she had not, but
was on her way. She explained that she had not talked to “them” yet,
and Drennon responded that he would talk to her “later on.”
About an hour later, Drennon called Bankston from jail.
During that call, Bankston told Drennon that her “Auntie Monique”
killed her husband last night and that “she” did it at Club 112.
Drennon responded by saying, “so it’s a wrap, huh,” and “that’s
something we ain’t got to worry about no more.” Drennon also asked,
“so they say they sure it’s over,” to which Bankston replied, “yes.”
Drennon also asked Bankston, “did you see it on the news?”
Drennon’s father joined the phone call; Drennon asked him to call
Hargrove and explained that he wanted to talk to Hargrove because
“I just need to hear something from his mouth, man, that’s it.”
Hargrove eventually joined the call and told Drennon that the
“n***** f**ked the s**t out of that ho, man.” Drennon asked, “what
that ho end like,” and Hargrove repeated what he had just said and
added that he had told Drennon that he “was going to fix it” and
12 “f**k that ho for you.”
Drennon did not testify at trial. His defense centered, in part,
around his role as an informant for Detective David Quinn, who was
investigating Griffin’s murder. At trial, Detective Quinn testified
that he first met Drennon as a result of an investigation in February
2007 in which Drennon was a witness. Detective Quinn interviewed
Drennon, and Drennon provided accurate information about three
unsolved crimes. After that interview, Detective Quinn and Drennon
stayed in contact, and Drennon continued to be an informant for
Quinn. Detective Quinn testified that Drennon was “probably the
greatest source I had ever encountered.” In closing arguments,
Drennon’s counsel argued that the phone calls that Drennon made
from jail to Bankston and others were not evidence of his guilt, but
were simply him “still working with Detective Quinn, still fishing
for information to help Detective Quinn.”
2. Drennon contends that, because the trial court did not make
specific findings on matters such as the conflicts in the evidence and
the credibility of witnesses in denying Drennon’s motion for new
13 trial on the general grounds under OCGA §§ 5-5-20 and 5-5-21, the
court did not fulfill its role as the “thirteenth juror.” For this reason,
Drennon contends that we must vacate and remand for the trial
court to fulfill its statutory duty. We disagree.
Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight of the evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial—commonly known as the “general grounds”—require the trial judge to exercise a “broad discretion to sit as a ‘thirteenth juror.’” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.
White v. State, 293 Ga. 523, 524 (753 SE2d 115) (2013) (citation
omitted). Moreover, we have held that “[w]hen a trial court exercises
its discretion as the ‘thirteenth juror,’ it need not explicitly speak of
its discretion with respect to the general grounds,” and “unless the
record shows otherwise,” we even “presume that the trial court
understood the nature of its discretion and exercised it.” Hodges v.
14 State, 309 Ga. 590, 592 (847 SE2d 538) (2020) (citation and
punctuation omitted) (rejecting a defendant’s contention that the
trial court did not properly exercise its discretion as the “thirteenth
juror” where “the trial court specifically stated in its order that it
was denying [the defendant’s] motion for new trial after
‘consideration of the pleadings, the transcript of proceedings, and
the applicable law,’” “did not state [an] incorrect standard in its
order, and nothing in the record indicate[d] that the court was
unaware of its responsibility”). See also Myers v. State, 313 Ga. 10,
13-14 (867 SE2d 134) (2021) (holding that the record did not support
the defendant’s “argument that the trial court failed to fulfill its duty
in ruling on the general grounds to weigh the evidence and consider
the credibility of the witnesses,” because in its order denying the
motion for new trial, the trial court explained that the defendant
“asked the court to reverse his convictions under the discretion given
to the court by OCGA §§ 5-5-20 and 5-5-21” and “[t]he court found
that ‘this is not an exceptional case in which the evidence
preponderates heavily against the verdict’”).
15 Here, in denying Drennon’s motion for new trial on the general
grounds, the trial court specifically acknowledged that Drennon was
moving “the Court to reverse his convictions under the discretion
given to the Court by OCGA §§ 5-5-20 and 5-5-21” and then denied
the motion based on the specific finding that “this is not an
exceptional case in which the evidence preponderates heavily
against the verdict.” Thus, the record does not support Drennon’s
claim that the trial court failed to exercise its discretion under
OCGA §§ 5-5-20 and 5-5-21. See Myers, 313 Ga. at 13-14.
3. Drennon contends that the evidence is insufficient as a
matter of constitutional due process and as a matter of Georgia
statutory law, see OCGA § 24-14-6, to support his conviction for the
malice murder of Griffin. More specifically, Drennon contends that
the evidence showed that he was in jail at the time of Griffin’s
murder, that Drennon had no part in setting up or encouraging the
murder, that his conversations with his IRC associates while in jail
demonstrated Drennon’s attempts to obtain information to pass
along to Detective Quinn, and that the State’s evidence was entirely
16 circumstantial and failed to exclude the hypothesis that other
members of the IRC independently killed Griffin while carrying out
their plan to rob him for his jewelry. We disagree.
When evaluating a challenge to the sufficiency of the evidence
as a matter of constitutional due process, we view the evidence
presented at trial in the light most favorable to the verdicts and ask
whether any rational trier of fact could have found the defendant
guilty beyond a reasonable doubt for the crimes for which he was
convicted. See Jones v. State, 304 Ga. 594, 598 (820 SE2d 696) (2018)
(citing Jackson v. Virginia, 443 U.S. 307, 318-319 (99 SCt 2781, 61
LE2d 560) (1979)). We leave to the trier of fact “the resolution of
conflicts or inconsistencies in the evidence, credibility of witnesses,
and reasonable inferences to be derived from the facts,” Smith v.
State, 308 Ga. 81, 84 (839 SE2d 630) (2020), and we do not “reweigh
the evidence,” Ivey v. State, 305 Ga. 156, 159 (824 SE2d 242) (2019)
(citation and punctuation omitted).
Moreover, as a matter of Georgia statutory law, “[t]o warrant
a conviction on circumstantial evidence, the proved facts shall not
17 only be consistent with the hypothesis of guilt, but shall exclude
every other reasonable hypothesis save that of the guilt of the
accused.” OCGA § 24-14-6. “Not every hypothesis is reasonable, and
the evidence does not have to exclude every conceivable inference or
hypothesis; it need rule out only those that are reasonable.” Garay
v. State, 314 Ga. 16, 20 (875 SE2d 631) (2022) (citation and
punctuation omitted). “Whether alternative hypotheses are
reasonable . . . is usually a question for the jury, and this Court will
not disturb the jury’s finding unless it is insufficient as a matter of
law.” Frazier v. State, 308 Ga. 450, 453 (841 SE2d 692) (2020)
(citation and punctuation omitted). Additionally, under Georgia
statutory law, “[e]very person concerned in the commission of a
crime is a party thereto and may be charged with and convicted of
commission of the crime.” OCGA § 16-2-20 (a). Conviction as a party
to a crime requires proof of a common criminal intent, which a trier
of fact may infer from “presence, companionship, and conduct before,
during and after the offense.” McGruder v. State, 303 Ga. 588, 591
(814 SE2d 293) (2018) (citation and punctuation omitted).
18 The evidence here regarding Drennon’s role in Griffin’s
murder, although circumstantial, was sufficient to convict Drennon
as a matter of constitutional due process. To begin, the State
introduced evidence that “IRC members . . . had planned Griffin’s
murder to retaliate for Drennon’s arrest.” Morris, 294 Ga. at 47.
Moreover, viewed in the light most favorable to the verdicts, the jury
was entitled to conclude that Drennon was angry that Griffin
identified him at the hospital, telling his IRC associates that “some
dude came in there and identified me” and that “the n***** tried to
identify a n*****.” Similarly, the jury was told that Drennon and his
IRC associates referred to Griffin as “ol’ girl” and could infer that
they used other code words such as “ho,” “whore,” and “girl” to refer
to Griffin; that Drennon was worried about or bothered by Griffin,
saying that he was “sweatin’ that ho”; and that Drennon was asking
his IRC associates to kill Griffin and encouraging them to do so,
telling Hargrove to “lay that ho out for me.” Hargrove promised that
he would, saying that Drennon had Hargrove’s word that “I’m a f**k
the s**t out that ho.” In response, Hargrove said that he had told
19 Drennon that he “was going to fix it” and “f**k that ho for you,”
(emphasis supplied), a statement from which the jury could infer
Hargrove was acting with Drennon’s encouragement. In addition,
the jury could infer from Drennon’s declarations of impatience—
such as “[g]o on ahead and lay that ho on out for me,” and “[a]in’t
s**t going on on the f**king news”—coupled with responses by
Hargrove and Stevens to “be cool and just watch the news” and “that
news going to come up,” that Drennon was encouraging his fellow
IRC associates to kill Griffin and that he and they were acting with
a common intent. There was also evidence that Bankston used
coded language to inform Drennon that Hargrove (“Auntie
Monique”) had killed her “husband” (Griffin) at Club 112. Finally,
Drennon expressed relief when he found out that Griffin had been
killed, telling Bankston, “so it’s a wrap, huh,” and “that’s something
we ain’t got to worry about no more.”
Although Drennon contends that he had the conversations
from jail to produce information to give to Detective Quinn, it was
for the jury, and not this Court, to resolve any conflicts or
20 inconsistencies in the evidence, judge the credibility of witnesses,
and draw reasonable inferences from the facts. See Smith, 308 Ga.
at 84. In addition, “[a] defendant need not pull the trigger, or even
be present for a shooting, to be found guilty as a party to murder
and related crimes.” Nicholson v. State, 307 Ga. 466, 473 (837 SE2d
362) (2019) (holding that the evidence was sufficient to sustain the
conviction of a gang member where it showed that he intentionally
advised and encouraged other “gang members to commit the
crimes”). In sum, viewed in the light most favorable to the verdicts,
we conclude that the evidence summarized above was sufficient to
support Drennon’s conviction for malice murder as a matter of
constitutional due process. See Jackson, 443 U.S. at 319.
Drennon nonetheless argues that there was a reasonable
hypothesis other than his guilt—that his fellow IRC members killed
Griffin to obtain his jewelry and did so without any encouragement
from Drennon—such that the evidence presented at trial was not
sufficient to convict him of malice murder as a matter of Georgia
statutory law. See OCGA § 24-14-6. However, as we have explained,
21 “[n]ot every hypothesis is reasonable,” and evidence “need rule out
only those that are.” Garay, 314 Ga. at 20. Moreover, whether the
alternative hypothesis asserted by Drennon is reasonable was a
question for the jury, and we will not disturb the jury’s finding on
this point “unless it is insufficient as a matter of law.” Frazier, 308
Ga. at 453. Here, based on the evidence summarized above—which
includes evidence that Griffin’s Breitling jewelry was found on his
body after he was killed—we conclude that the jury was free to reject
as unreasonable the hypothesis that Drennon spoke with IRC
members from jail only to obtain information for Detective Quinn,
and not to encourage members of the IRC to kill Griffin, and that
the members of the gang acted independently in killing Griffin to
steal his jewelry. Accordingly, the evidence was also sufficient to
support Drennon’s conviction for murder as a matter of Georgia
statutory law. See OCGA § 24-14-6.
4. Drennon contends that the evidence is insufficient to support
his conviction for participation in criminal street gang activity. We
disagree.
22 (a) Before turning to the merits of Drennon’s claim, we note
that, as part of proving its case that Drennon was involved in
criminal street gang activity, the State introduced testimony from
several witnesses implicating Drennon and the IRC in “a September
2006 attack on, kidnapping of, and burglary of the home of victim
Gary Lester.” Morris, 294 Ga. at 47.2 Easterling and Lester testified
that while Lester was playing a video game at Tight Werks, an
automobile shop Drennon operated, Drennon hit Lester in the head
with a gun. At that point, Drennon, with assistance from other
members of the IRC, handcuffed Lester and placed a scarf over his
eyes. They then put Lester in a truck, and Easterling, Stevens, and
2 Drennon was indicted for these crimes, but they were severed for trial.
In this appeal, Drennon does not challenge the State’s use of the 2006 crime against Lester to prove the criminal-gang-activity count of the indictment. See Morris, 294 Ga. at 48-49 (holding that the trial court did not abuse its discretion in admitting evidence of crimes for which Edward Morris was indicted, but which were severed for his trial, as relevant to prove the criminal- gang-activity count against Morris). See also OCGA § 24-4-418 (a), which was enacted in 2016 and which says that “[i]n a criminal proceeding in which the accused is accused of conducting or participating in criminal gang activity in violation of Code Section 16-15-4, evidence of the accused’s commission of criminal gang activity, as such term is defined in Code Section 16-15-3, shall be admissible and may be considered for its bearing on any matter to which it is relevant.” 23 others (but not Drennon) drove Lester to several locations and
eventually to his house, which they burglarized. According to Lester,
IRC members took “clothes, jewelry, [a] gun, [and a] T.V.”
(b) Drennon was charged in the indictment with violating the
Street Gang Act by participating in crimes of violence, including
murder, armed robbery, criminal attempt to commit armed robbery,
aggravated assault, and kidnapping, while associated with the IRC.
To prove that Drennon violated the Street Gang Act, the State was
required to show that he was, in fact, associated with the IRC, that
the IRC was a “criminal street gang,” that Drennon committed a
predicate act of violence contained in OCGA § 16-15-3 (1) (J) and as
set forth in the indictment, and that the act of violence was intended
to further the interests of the IRC. See OCGA §§ 16-5-4 (a); 16-15-3
(1) (J); 16-15-3 (3); Boyd v. State, 306 Ga. 204, 209 (830 SE2d 160)
(2019); Chavers v. State, 304 Ga. 887, 890 (823 SE2d 283) (2019).
Drennon contends that the State failed to prove three of these
elements: that he was associated with the IRC gang, that he
participated in a crime of violence, and that he undertook criminal
24 activity to further the interests of the gang. As for whether Drennon
was associated with the IRC, Drennon contends that “no one
testified that [he] was a part of this gang.” But he overlooks the
testimony of Easterling, who testified that Drennon was a member
of the IRC. Moreover, Detective Quinn testified that Drennon
provided him with accurate information about the activity of
members of the IRC, and Drennon elicited testimony that his
conversations with Detective Quinn indicated that Drennon was
“hanging out with [members of the IRC] on a regular basis” and that
“a lot of them are hanging out at Tight Werks,” where Drennon
worked. Other evidence, including testimony from Lester,
Easterling, and Bankston, confirmed that Drennon had frequent
contact with members of the IRC and participated in violent crimes
with them. Viewed in the light most favorable to the verdicts, the
evidence was sufficient to authorize the jury to conclude that
Drennon was, at the very least, associated with the IRC. See Lupoe
v. State, 300 Ga. 233, 237-238 (794 SE2d 67) (2016) (concluding that
evidence such as a defendant’s frequent contact with members of a
25 gang was sufficient to show that the defendant was “associated with”
the gang).
Drennon summarily argues that the State failed to prove that
he committed a predicate act of violence, but we readily conclude
that when viewed in the light most favorable to the verdicts, the
evidence presented at trial and summarized above was sufficient to
show that Drennon participated in crimes of violence against Griffin
on June 10, against Griffin and Magee on May 22, and against
Lester in 2006. See OCGA § 16-15-3 (1) (J). Finally, Drennon argues
that there was a complete lack of evidence that he had the intent to
further the interests of the IRC because, according to Drennon, mere
association with a criminal street gang is insufficient to satisfy this
element and the State did not show that he participated in any of
the IRC’s activities. We disagree. We have held that “[e]vidence of
[a defendant’s] association with [a gang] and his participation in the
group’s activities before and during the crimes charged provide the
required nexus between his criminal acts and the intent to further
the gang’s interests.” Hayes v. State, 298 Ga. 339, 342-343 (781 SE2d
26 777) (2016). See also Rodriguez v. State, 284 Ga. 803, 807 (671 SE2d
497) (2009) (“Management of or participation with others in . . .
criminal street gang activity necessarily implies knowledge of the
gang’s criminal activities and a specific intent to further its criminal
purposes.”). To that end, Easterling testified that the IRC’s goal in
committing its criminal acts was to collect “money, drugs, jewelry,
guns[, and] merchandise,” and the jury was authorized to conclude
that Drennon’s activities, including the attempted robbery of Griffin
on May 10 and the kidnapping and robbery involving Lester,
furthered that goal. Moreover, there was evidence that “IRC
members . . . had planned Griffin’s murder to retaliate for Drennon’s
arrest,” Morris, 294 Ga. at 47, and Drennon’s encouragement of IRC
members to kill Griffin furthered that goal. For these reasons, we
conclude that the evidence is constitutionally sufficient to support
Drennon’s conviction for criminal street gang activity.
5. For the first time in this case, Drennon contends that he was
denied his right to be present numerous times when he was excluded
from bench conferences during jury selection. As explained below,
27 this claim should be addressed in the first instance by the trial court
on remand.
“This Court has long held that the Georgia Constitution
guarantees criminal defendants the right to be present, and see and
hear, all the proceedings which are had against him on his trial
before the court.” Champ, 310 Ga. at 839 (citation and punctuation
omitted). Moreover, a defendant’s right to be present
may be violated when a defendant is excluded from conferences held at the bench between the trial court and the lawyers for the parties, because while the defendant may be present in open court and thus able to see such bench conferences, he presumably cannot hear what is discussed (as preventing jurors and others in the courtroom from hearing such conferences is their very purpose). Id. (emphasis omitted). It is well settled that “[j]ury selection is a
critical stage at which a defendant generally is entitled to be
present, including at bench conferences.” Young v. State, 312 Ga. 71,
79 (860 SE2d 746) (2021). “[W]e have repeatedly held that a
defendant has the right to participate in a bench conference during
which a prospective juror or a trial juror is discussed and removed.”
28 Champ, 310 Ga. at 840. However,
[m]ost bench conferences involve questions of law and consist of essentially legal argument about which the defendant presumably has no knowledge, and many other bench conferences involve logistical and procedural matters. A defendant’s presence at bench conferences dealing with such topics bears no relation, reasonably substantial, to the fullness of his opportunity to defend against the charge, and the constitutional right to be present does not extend to situations where the defendant’s “presence would be useless, or the benefit but a shadow.” Thus, a defendant’s right to be present is not violated by his absence from such bench conferences.
Heywood v. State, 292 Ga. 771, 774 (743 SE2d 12) (2013) (cleaned
up). Moreover, a defendant may relinquish his right to be present
“if he so chooses.” Champ, 310 Ga. at 841 (citation and punctuation
omitted).
A defendant may relinquish his right in several ways: if he personally waives the right in court; if his counsel waives the right at his express direction; if his counsel waives the right in open court while he is present; or, as seen most commonly in our case law, if his counsel waives the right and the defendant subsequently acquiesces to that waiver.
Id. 3 “Acquiescence may occur when a defendant remains silent after
3 The Attorney General, but not the District Attorney, argues that
29 he becomes aware of the proceedings occurring in his absence, so
long as he had sufficient information concerning the matters
occurring outside his presence for his silence to be fairly construed
as consent.” Id.
However, where a defendant
raises a right-to-be-present claim for the first time on appeal, unless that claim can be easily rejected based on the existing record, the case should be remanded to the trial court for a hearing at which the parties have an opportunity to supplement the record with relevant evidence and after which the trial court may make factual findings and issue an order ruling on the claim, which may then be reviewed in a subsequent appeal.
Champ, 310 Ga. at 844.4 We adopted this rule, in large part, because
Drennon’s right-to-be-present claim is not preserved for review because Drennon did not raise it until this appeal. But the right to be present “is a personal right of the defendant that cannot be waived merely by the failure of his counsel to timely assert it; it must be relinquished by the defendant himself” in one of the ways discussed above. Champ, 310 Ga. at 841 n.7.
4 We have explained that “‘[m]ere speculation as to what may have been
discussed at [a bench] conference cannot serve as the basis for the grant of a new trial,’” Reed v. State, 314 Ga. 534, 544 (___ SE2d ___) (2022) (quoting Nesby v. State, 310 Ga. 757, 759 (853 SE2d 631) (2021)), and have held that where a defendant “offers nothing more than speculation as to what the conferences might have concerned,” his claim that his right to be present was violated fails, Reeves v. State, 309 Ga. 645, 648 (847 SE2d 551) (2020). Accord Nesby, 310 Ga. at 759. However, Reed, Nesby, and Reeves were all cases in which the
30 right-to-be-present claims often involve “fact-specific” decisions that
“[t]rial judges are generally better situated than appellate courts to
make.” Id. See also Reed v. State, 314 Ga. 534, 540 (___ SE2d ___)
(2022) (explaining the efforts of counsel and the trial court to re-
create a record during motion for new trial proceedings of what
occurred at bench conferences that were not transcribed in order to
determine whether Reed was denied his right to be present at those
conferences and if so, whether he acquiesced to the denial of that
right).
We note that our ability to evaluate Drennon’s claim is
hampered by the minimal argument offered in his appellate brief.
To that end, Drennon provides a list of citations to pages of the voir
dire transcript where bench conferences occurred, but makes no
effort to explain or contextualize any of the individual bench
defendant had an opportunity to develop a record on his right-to-be-present claim on motion for new trial, see Reed, 314 Ga. at 539-541; Nesby, 310 Ga. at 759; Reeves, 309 Ga. at 648, and it is appropriate under those circumstances to apply the “mere speculation” principle to the defendant’s right-to-be-present claim. Here, by contrast, the defendant has had no such opportunity to develop the record on whether he was denied his right to be present. 31 conferences. Nor does he analyze, with supporting citations of
authority, how his right to be present was denied. Instead, he simply
claims that “it is impossible to tell” whether the conferences he
points to were about jury selection—the type of bench conference for
which Drennon generally would have the right to be present—as
opposed to about practical or logistical issues—the type of bench
conference for which Drennon generally would not have such a
right—and summarily concludes that his right to be present was
violated.5
After a careful review of the record, we conclude that Drennon’s
right-to-be-present claim cannot be “easily rejected based on the
existing record.” Champ, 310 Ga. at 844. This Court simply does not
have enough information to “easily reject” his claim—but neither do
5 We conclude that Drennon’s appellate brief on this issue complies with
this Court’s Rule 22 (explaining that “[a]ny enumerated error not supported by argument or citation of authority in the brief shall be deemed abandoned”), but only marginally so. We also note that Drennon’s current counsel on appeal represented him during the motion for new trial proceedings, and despite the fact that current counsel called trial counsel as a witness during those proceedings, current counsel made no apparent effort to develop a record regarding Drennon’s right-to-be-present claim. We encourage counsel contemplating right-to-be-present claims on behalf of a client to develop the record on such claims as early as possible under the circumstances. 32 we have enough information to determine whether Drennon’s right
to be present was violated or whether Drennon relinquished any
right that he had to be present. See Champ, 310 Ga. at 841. In
conducting our analysis, we considered that all nine bench
conferences to which Drennon points occurred during jury selection,
a part of the trial “at which a defendant generally is entitled to be
present, including at bench conferences.” Young, 312 Ga. at 79. But
those conferences were not transcribed; the transcript only notes
that “a discussion was had at the bench between the court and
counsel.” Moreover, we cannot discern from the transcript notations
that the conferences were between “court and counsel” whether
Drennon was necessarily excluded from those conferences. However,
to guide the trial court on remand, and to highlight to practitioners
the difficulty this Court faces when an appellant does not develop
the factual record for a right-to-be-present claim before he makes
such a claim on appeal, we review the circumstances related to two
of the nine bench conferences at issue to explain why a remand is
33 necessary.6
(a) Before one of the bench conferences occurred, the trial court
informed the prospective jurors that it would hear from them about
any hardships that they had. The trial court then took down the
numbers of the jurors who indicated that they wanted to be heard
regarding a hardship. A short time later, the court excused all
jurors, except those who indicated a desire to be heard regarding
6 We also note that to ensure that a defendant’s right to be present is not
violated, trial judges could altogether decline to hold bench conferences and instead could conduct such conferences in open court outside the presence of the jury; could require bench conferences to be transcribed; or, when bench conferences are held without participation from criminal defendants, could inform those defendants, where applicable, of their right to be present and inquire as to whether they wish to exercise or waive that right, making a record of any waiver of rights. Similarly, the trial court, prosecutor, and defense counsel should undertake to protect a defendant’s right to be present, taking care to make a contemporaneous record of what transpired before and during bench conferences. See Sammons v. State, 279 Ga. 386, 388 n.12 (612 SE2d 785) (2005) (reversing a defendant’s conviction because he denied his right to be present at a critical stage of his trial and reminding “[p]rosecutors . . . that they share the duty to ensure a fair trial” and encouraging them, “if proceedings take place outside the presence of the defendant,” to “alert the trial court of the need to allow the defendant time to discuss the issue with counsel and to permit [the] defendant to place an express waiver on the record”). See also Champ, 310 Ga. at 849 (McMillian, J., concurring specially) (encouraging trial courts and counsel “to put on the record what occurred at bench conferences or confirm that the defendant waived the right to be present”). Efforts such as these could ease or prevent the difficult task of re-creating on appeal what occurred at bench conferences held months or years earlier. 34 their hardship. The jurors who remained to discuss their hardships
included Jurors 1, 6, 7, 10, 11, 13, 14, 18, 22, 23, 24, 27, 28, 29, 30,
31, 34, 35, 36, 37, 38, 39, 43, 45, 47, and 50. After the other jurors
were excused, Drennon’s counsel asked the trial court if counsel
could approach the bench. The record indicates that “a discussion
was had at the bench between the court and counsel,” with no
indication of what the discussion was about. Immediately after the
conference, the trial court began to hear from the jurors who
remained because of their potential hardships, turning first to Juror
1, who expressed concern about a financial hardship due to self-
employment.
Drennon offers no specific argument about this bench
conference. The State contends that trial counsel approached to
discuss whether the court should question Juror 1 about a potential
conflict due to self-employment. However, shortly before the bench
conference, the trial court had already said that it was planning on
questioning all the jurors who indicated that they had potential
hardships, and immediately before it, the court asked all those
35 jurors to remain in the courtroom. The record therefore leaves us
unable to easily conclude that this conference concerned a matter for
which Drennon did not have a right to be present. If Drennon did
have a right to be present, the transcript, as noted above, does not
indicate whether he was present and, likewise, does not indicate
whether he could hear what was being discussed. Moreover, as was
the case in Champ, “[t]here is no indication in the record” here that
Drennon “personally waived his right to be present for th[is] bench
conference[ ] or that his counsel waived that right in [Drennon’s]
presence or with his express authority.” 310 Ga. at 841. In addition,
the record is unclear on the “highly fact-specific” question of
acquiescence. Id. We cannot determine, for example, whether other
discussions on the record during trial may have given Drennon
“sufficient information concerning the matters occurring outside his
presence for his silence to be fairly construed as consent.” Id. Nor do
we have any indication that Drennon knew about the conference
despite being absent from it based on discussions that occurred off
the record, such as by defense counsel informing him of what
36 occurred at the conference. See Champ, 310 Ga. at 843 (explaining
that “defendants often may know more about the subject of
proceedings in which they do not participate than is apparent from
a trial transcript”). For these reasons, this right-to-be-present claim
cannot be “easily rejected based on the existing record.” Champ, 310
Ga. at 844.
(b) Another bench conference occurred after the trial court
announced in open court that a prospective juror had e-mailed the
court. The record is silent as to the subject matter of that e-mail and
as to what the court and counsel discussed at the bench conference.
The record therefore leaves us unable to easily conclude that this
conference concerned a matter for which Drennon did not have a
right to be present. If Drennon did have a right to be present, the
transcript does not indicate whether he was present or whether he
could hear what was discussed at the conference. Moreover, again,
“[t]here is no indication in the record” here that Drennon “personally
waived his right to be present for th[is] bench conference[ ] or that
his counsel waived that right in [Drennon’s] presence or with his
37 express authority.” Champ, 310 Ga. at 841. In addition, all of the
reasons that we gave for not being able to easily reject Drennon’s
right-to-be-present claim with regard to the bench conference
discussed above on the ground of acquiescence apply equally to this
bench conference. Accordingly, this right-to-be-present claim cannot
be “easily rejected based on the existing record.” Id. at 844.
(c) These two bench conferences are only two of the nine bench
conferences Drennon cites in his appellate brief, but they are
illustrative of why we do not have enough information to “easily
reject” Drennon’s claim and why it is therefore necessary to remand
for the trial court to develop a factual record and decide, with respect
to all nine bench conferences, whether Drennon had a right to be
present at the conferences and, if so, whether Drennon personally
waived his right to be present at the conferences or acquiesced to his
absence from them.
For these reasons, we affirm the sufficiency of the evidence
supporting Drennon’s convictions and conclude that the trial court
did not fail to exercise its discretion as the “thirteenth juror” when
38 ruling on the general grounds of Drennon’s motion for new trial, but
vacate the trial court’s judgment in part and remand the case to that
court to hold a hearing on Drennon’s right-to-be-present claim. If the
trial court rules against Drennon’s claim, he will have 30 days to file
a new notice of appeal of the decision and may appeal that decision
and any other enumeration of error not addressed in this opinion.7
Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
7 Likewise, if the trial court grants Drennon a new trial based on his
right-to-be-present claim, the State may appeal that decision. See OCGA § 5- 7-1 (a) (8) (providing that the State may appeal “[f]rom an order, decision, or judgment of a court granting a motion for new trial or an extraordinary motion for new trial”). 39 Decided October 25, 2022.
Murder. Fulton Superior Court. Before Judge Newkirk.
Garland Samuel & Loeb, Amanda C. Palmer, for appellant.
Fani T. Willis, District Attorney, Lyndsey H. Rudder, Kevin C.
Armstrong, Elizabeth Rosenwasser, Virginia L. Davis, Leslie A.
Coots, Assistant District Attorneys; Christopher M. Carr, Attorney
General, Patricia B. Attaway Burton, Deputy Attorney General,
Paula K. Smith, Senior Assistant Attorney General, Emily R. Polk,
Assistant Attorney General, for appellee.