NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: February 3, 2026
S25A1115. KERNS v. THE STATE.
COLVIN, Justice.
Appellant Jamal Kerns was convicted of the malice murder of
his cousin, Keschon Kerns, the subsequent aggravated assault of
Malik Golar, and other crimes related to both incidents. 1 On appeal,
1 The crimes occurred on May 20, 2017, and June 6, 2017. On August 31,
2017, a DeKalb County grand jury returned an indictment charging Appellant with malice murder (Count 1), felony murder (Count 2), aggravated assault against Keschon Kerns (Count 3), possession of a firearm during the commission of a felony (Count 4), aggravated assault against Golar (Count 5), and possession of a firearm during the commission of a felony (Count 6). Following a jury trial from November 29 to December 3, 2021, the jury found Appellant guilty of all charges. For the crimes against Keschon, the trial court sentenced Appellant to life in prison with the possibility of parole for malice murder (Count 1) and imposed a consecutive term of five years in prison for possession of a firearm during the commission of a felony (Count 4). Appellant’s felony murder charge (Count 2) was vacated by operation of law, and the trial court merged Appellant’s aggravated assault charge (Count 3) into Appellant’s conviction for malice murder (Count 1). As to the crimes against Golar (Counts 5-6), the trial court imposed a consecutive term of twenty years in prison for aggravated assault (Count 5) and a suspended term of five years in prison for possession of a firearm during the commission of a felony (Count 6). Appellant timely filed a motion for a new trial through new counsel on he asserts that the trial court erred by violating his right to be
present at trial, in violation of the Sixth and Fourteenth
Amendments of the United States Constitution and Article I,
Section I, Paragraph XII of the Georgia Constitution; that it abused
its discretion when it denied his motion for the appointment of new
counsel without holding a hearing, in violation of the Sixth
Amendment; that it plainly erred by failing to issue a curative
instruction regarding Appellant’s removal from the courtroom for
his disruptive behavior; and that the accumulation of the court’s
errors unfairly prejudiced Appellant’s defense, even if no single error
sufficiently did so. For the reasons explained below, we affirm.
1. The evidence admitted at trial showed the following. At the
time of the crimes, Appellant lived in DeKalb County with his
grandfather, his twin brother, and his cousin, Keschon. Appellant
shot and killed Keschon at their shared home. Less than two weeks
January 3, 2022. Appellant did not amend his motion, and he waived his right to a hearing. The court denied the motion for a new trial on October 18, 2024. Appellant timely filed a notice of appeal directed to this Court. The case was docketed to this Court’s August 2025 term and submitted for a decision on the briefs. 2 later, Appellant shot Malik Golar, who was once a close friend of his.
Following the shooting of Golar, Appellant was questioned by police
and admitted to both shootings.
2. Appellant argues that the trial court denied his right to be
present by failing to afford him an opportunity to observe the trial
virtually after he was forcibly removed. This claim fails. 2
(a) The trial against Appellant was set to begin on September
9, 2021. However, in a pre-trial proceeding, Appellant’s trial counsel
told the court that Appellant wanted the opportunity to be heard
outside of the State’s presence. The court agreed, and after the
prosecutor exited the courtroom, Appellant said, “I wanted my
lawyer to let you know that I was out of communication — that I
would like to be represented … by someone else.” The court noted
that Appellant’s trial counsel had the case for nearly two years and
acknowledged that it “hear[d]” Appellant’s complaint of a
2 Because Appellant makes no specific argument that the United States
Constitution and Georgia Constitution apply differently to his right-to-be- present claim, we analyze those claims together. See Tavarez v. State, 319 Ga. 480, 487 n.8 (2024). 3 “communication problem,” but the jury was coming in “twenty-two
minutes to try this case,” so his trial counsel would “continue to
represent him.” Appellant then insisted that his counsel was not
ready for trial, but trial counsel confirmed that he was. The court
concluded that the case would proceed.
The prosecutor then returned to the courtroom, and as the
proceedings went on, Appellant interrupted the trial judge several
times. In the presence of the State, Appellant renewed his request
for a new attorney through counsel. Counsel stated that Appellant
“would like the [c]ourt to know that he would like another attorney,
and … another [j]udge.” The trial court told Appellant that his
counsel “is an excellent attorney,” that Appellant could not “find a
better attorney to represent [him],” and that his trial counsel had
been practicing “for over 20 years.” The court further stated that
counsel was “well prepared in this matter,” and it confirmed that
counsel had participated in more than 100 trials in his career. The
court concluded by stating that the trial would proceed “with me
being the [j]udge ... [and with counsel] representing [Appellant].”
4 Appellant responded by stating that he “fear[ed] that [his] attorney
is not as confident to represent [him] as he is other people[.]”The
court noted Appellant’s concerns but stated that it was “denying any
request that [Appellant] ha[d] for another attorney or for this
proceeding to be delayed.”
The court attempted to move the proceedings forward, but
Appellant refused to sign his indictment. The court stated that it
“appear[ed]” that Appellant was “malingering” to “stall[ ]” the
proceeding. As the court tried to remind Appellant of the proper
behavior in the courtroom, Appellant interrupted and said that he
had “talked last night [with his trial counsel.] [Trial counsel] said
that he wasn’t confident in [his] case.” As the court attempted to
explain that Appellant’s conversations with his attorney were
privileged, Appellant again insisted that “[he was] being
represented by ... someone that isn’t confident of [his] case.”
Appellant’s trial counsel then explained:
I expressed to [Appellant] my concerns … with this case going to trial. And that’s my job to offer my opinion on the value of [Appellant’s] case. And [Appellant] and I differ on
5 that issue, and I’ll leave it at that. But as to confidence in this case ... I’ve tried many murder cases. I don’t think this one is going to be a problem.
After resolving a few pre-trial matters, the court noted that “it
would not be appropriate” for Appellant to ask questions in the
presence of the jury, and asked trial counsel if he wanted to “have a
conversation with [his] client.” Trial counsel agreed, and the court
recessed.
When it resumed, trial counsel reported that, due to
Appellant’s “disappoint[ment]” with him, Appellant was requesting
that “the court allow him to represent himself[.]” The court then
conducted a Faretta 3 hearing. During the hearing, Appellant gave
several non-responsive answers and twice asked the court if anyone
was “hearing voices.” Based on Appellant’s answers, the trial court
denied Appellant’s request to represent himself. It also denied
Appellant’s request to replace trial counsel, stating that it would not
“release” trial counsel from representing Appellant. Lastly, the court
granted a joint request for a continuance so that Appellant’s
3 See Faretta v. California, 422 US 806, 819 (1975).
6 competency for trial could be assessed again. 4
After Appellant was again declared competent to stand trial,
his trial began on November 29, 2021. Before voir dire, Appellant’s
trial counsel again asked if Appellant could address the court. After
being sworn in, Appellant asked for a change of venue and requested
that his trial counsel be “excused altogether because it’s a conflict of
interest.” He also reminded the court that he had “discuss[ed] the
problem that [he] was having with [trial counsel]. The court denied
his request and told Appellant that if he became disruptive, the
court would have him removed and that the trial would resume
“with [him] being in the holding cell or somewhere secure so he
[could] watch the proceedings virtually.” Appellant claimed that he
could not understand and asked for an opportunity to speak. The
court granted Appellant “two minutes.” Appellant then listed
several code sections that appeared to have no relevance to his
4 At the time of this ruling, Appellant had already been evaluated and
declared competent to stand trial. However, trial counsel indicated that he was concerned about the length of time since his last evaluation, and the State and trial counsel agreed that Appellant should be evaluated again. 7 motion for new counsel5 and again insisted that he could not be
represented by his current counsel. Appellant did not raise any other
specific issues with his trial counsel.
After Appellant confirmed that he did not have anything else
to add, the court again told Appellant that it had denied his request
for new counsel. But as the court attempted to proceed, Appellant
continued to lodge vague complaints about trial counsel, insisting
that Appellant “c[ould not] have him as his attorney.” At one point,
Appellant asked if he could be excused because he was “not about to
sit here and, one, out of [his] character because what’s being said out
of [his] mouth is more powerful than the case itself.” When the court
indicated that Appellant could leave, Appellant insisted that the
“case doesn’t make any sense with the person being out of the
courtroom.” At that point, the court asked counsel to move his chair
so that the jury could not hear Appellant’s interruptions. The court
then announced that the jury was about to come in and warned
5 Appellant cited OCGA §§ 16-5-90, 17-7-150, 24-4-406, which relate to
stalking, evidence of habit and routine and practice, and changes of venue, respectively. 8 Appellant that if he continued to speak audibly in the jurors’
presence, the court would “have him removed.”
Despite this warning, Appellant continued to interrupt the
proceedings. The court gave Appellant a final warning to “remember
the instructions,” and the jury entered the courtroom. The record
then reflects that Appellant began to speak to the jurors
“indiscernibly” during their initial examination. The court stopped
the proceedings and then asked the jurors to leave. As they exited,
Appellant told the jury that he had “paranoid schizophrenia” and
that was “why a jury shouldn’t be called in here.”
After the jury exited, the court told Appellant:
From the moment … the jurors were seated and up to present, you have constantly been making comments in which all of the jurors … have been able to hear you. The [c]ourt has been able to hear you. And … your tone has become increasingly louder for people to hear what you are saying. I instructed you that if you had anything that you wanted to say to the court or to your counsel, you need to talk to your counsel. And during this time, you have been deliberately ... asking questions of cocounsel or making statements to cocounsel and to [trial counsel] in a manner that is not private, and which we could hear. As I sent the jurors out for a brief recess, you started making comments to the jurors so they could hear you. So, at this
9 time, the [c]ourt finds that your conduct and behavior is unacceptable, it’s disruptive to this process and as such, I’m going to have you removed for the remainder of the trial.
The court then said that it would “try” to see if it could “set up
… something before opening statements and evidence” where
Appellant could “see the process virtually,” but noted that it would
“take … some time” and that, therefore, “for jury selection, we’re
going to proceed … without [Appellant].” The State inquired if the
court could do “periodic checks” with Appellant to determine if
Appellant wanted to return to the courtroom. Appellant’s trial
counsel agreed and added he would like to be allowed to an
opportunity to speak with Appellant briefly before the court
returned from the lunch break “to see if he’s in a better position to
participate.” He also stated that it would “probably be prudent … to
see what would be possible to set up in the event that [Appellant] is
not able to be physically present with us.” Counsel suggested the
parties “get that going” by “openings tomorrow.”
Trial counsel went out to speak with Appellant’s social worker
10 and when trial counsel returned, voir dire began. The record does
not reflect that any party insisted on any assurance that Appellant
could see or hear the proceedings virtually as they moved forward.
Following a recess from voir dire and outside of the presence of
the jury, trial counsel said that, in line with the court’s instructions,
he had attempted to speak with Appellant, but that Appellant
refused to come to the “attorney booths” so that trial counsel could
speak with him. Though the court then indicated that Appellant
should be brought up, the record does not reflect that Appellant was
returned to the courtroom.
On the second day of trial, the court stated that, on the first
day of trial, it had twice asked Appellant, through the courtroom
deputies, if he wanted to participate in the process and that the
court was “informed” that Appellant refused to “participate in the
process” in the courtroom. Neither party objected to this description.
That morning, a deputy informed the court that Appellant said
that “he’s not coming out.” The court stated, after its inquiries and
Appellant’s refusal on the prior day, that it was “inclined to see if we
11 can set up monitors … for [Appellant] to watch the trial proceeding
virtually in the holding cell where he is now.” Appellant’s trial
counsel agreed, stating that he would “definitely … prefer … to give
him the opportunity to view the trial.” The court then stated that it
would “reach out to IT and see if they can set that up.”
Trial counsel then asked the court to tell Appellant that
counsel was withdrawing Appellant’s insanity plea. To do so, the
trial judge entered Appellant’s holding cell with the court reporter
present. There, the trial judge said, “[I]t’s my understanding that
you do not want to come in the courtroom and participate in your
trial[.]”Appellant confirmed that he “would rather not
participate[.]”Appellant again complained about his trial counsel,
insisting that he “want[ed] to represent [himself]” and that he did
not want to talk to his trial counsel. After the court reminded
Appellant that it had ruled on these requests, it gave Appellant two
options: Appellant could return to the courtroom or remain in the
holding cell where the court would “set up a Zoom link” to watch the
proceedings. Appellant did not answer and instead insisted that his
12 attorney was a “danger” to him and that he had a “constitutional
right to have someone else represent him.” The court concluded that
Appellant was being unresponsive and stated that it would “set up
the cameras” for Appellant to watch the trial from the holding cell.
Following opening statements and a recess for lunch, a deputy
alerted the court that Appellant refused to come to the holding cell
after leaving it to eat lunch. Later, the deputy who interacted with
Appellant testified that when he “tried to talk to [Appellant]” about
coming to see the proceedings, Appellant mentioned that “they had
a TV in the back waiting for him, so he could see what’s going on.”
The deputy responded that he “d[idn’t] know.” Appellant then stated
that he “wanted to stay downstairs” and refused to come up.
On the morning of the third day of trial, a courtroom deputy
testified that Appellant was again refusing to come upstairs.
According to the deputy, Appellant said that he had “no reason to
get dressed to come upstairs” and insisted that trial counsel “should
be fired.” The deputy asked Appellant if he was “refusing to get
dressed to go upstairs[.]” Appellant responded, “Yes.” The court then
13 asked the deputy if it was possible for the deputy to communicate
that “the only way that [Appellant] will be able to see the
proceedings virtually is if he comes up in the holding cell because …
I cannot safely have [the technology] brought downstairs. But he
would need to appear upstairs in a holding cell.” The deputy agreed.
At lunch on the third day, Appellant gave a note to the court
asking for a mistrial to be declared “for the reason and factors that
he presented earlier to the [c]ourt when we were in the holding cell,”
which were his discontent with trial counsel and his request to
represent himself. The note also stated that he would return to the
court “if that attorney is not there” and “if he could[ ] represent
himself.” The court did not rule on Appellant’s request for a mistrial.
After there was some discussion on how to allow a witness to do an
identification of Appellant in his absence, the proceedings continued
with the examination of two witnesses. At the end of the day, the
court notified Appellant’s trial counsel that it intended to inquire
the next morning about whether Appellant sought to testify and that
it would do so virtually.
14 On the morning of the fourth day of trial, Appellant appeared
virtually from the jail courtroom. Appellant’s counsel attended court
in person. Outside of the presence of the jury, the court stated that
Appellant was not physically in the courtroom because he was
“disruptive and … was refusing to appear[.]” There was no objection
to this description of Appellant’s prior and continued removal from
the courtroom.
The court then asked Appellant to “come to the podium” of the
jail courtroom to determine if he wanted to testify. When Appellant
did not do so, the court asked that the record reflect that Appellant
was virtually present but “refusing to stand and come to the
podium.” The court then ruled that Appellant was refusing to
participate.
During a recess on the fourth day, the court inquired if
Appellant would like to testify. After that inquiry, 6 the court asked
6 Due to the vague nature of Appellant’s responses to the court’s inquiry
about his desire to testify, the court later inquired again about whether Appellant wanted to testify, and at that point, Appellant unequivocally confirmed that he did not want to testify. «V11-553-4» 15 Appellant if he would like to be “physically present in the courtroom,
tomorrow morning” or “remain in the jail courtroom” where he
currently was. Appellant responded, “No, [he] would not like to go in
the courtroom.”
Later, during a charge conference where Appellant was
virtually present, the court asked again if Appellant wanted to be
“physically present” in the courtroom the next day. Appellant
responded, “No.” The court then asked Appellant if he would like to
watch the trial virtually from the holding cell. Appellant answered,
“No.”
On the morning of the fifth and final day of trial, a deputy
informed the court that Appellant was present but again refused to
come to the courtroom. The deputy who interacted with Appellant
testified that when he went downstairs to retrieve Appellant, he
asked if Appellant was ready to go and Appellant responded, “No.”
The court again stated that Appellant had been removed based on
his “behavior,” and that it would proceed forward.
After the examination of the remaining witnesses and closing
16 arguments, the jury found Appellant guilty of all charges. When the
court resumed for sentencing, the deputy who interacted with
Appellant testified that Appellant again refused to be brought to the
courtroom. The court, without any prompting from the parties, had
IT set up a Zoom link so Appellant could see and hear the sentencing
from the holding cell.
(b) Appellant advances two arguments in support of his right-
to-be-present claim. First, Appellant contends that his removal was
only authorized if he engaged in “misconduct,” and that his
disruptive behavior did not amount to misconduct because he was
insisting on a hearing to which he believed he was entitled. Second,
Appellant argues that even if there was sufficient cause to remove
him from the courtroom, the court abused its discretion by failing to
take measures available to it to ensure Appellant could see and hear
the trial virtually after he was removed. Appellant contends that
though he may have waived his right to be physically present
through his behavior, he did not waive his virtual presence, and that
his waiver of his physical presence “was at least in part predicated
17 on the fact that” a means of viewing the proceedings virtually would
be made available to him. We review each of these claims in turn.
“[A] criminal defendant’s right to be present at all critical
stages of the proceedings against him is a fundamental right and a
foundational aspect of due process of law.” Hampton v. State, 282
Ga. 490, 491–92 (2007) (citing Tennessee v. Lane, 541 US 509, 523
(2004)). But a defendant can “lose” his right to be present at trial
where “he has been warned by the judge that he will be removed if
he continues his disruptive behavior, and he nevertheless insists on
conducting himself in a manner so disorderly, disruptive, and
disrespectful of the court that his trial cannot be carried on with him
in the courtroom.” Weaver v. State, 288 Ga. 540, 542–43 (2011)
(citing Illinois v. Allen, 397 US 337, 343 (1970)). “Once lost,” the
right to be present can be reclaimed “as soon as the defendant is
willing to conduct himself consistently with the decorum and respect
inherent in the concept of courts and judicial proceedings.” Id.
The court’s determination in the removal of a disruptive
defendant is reviewed for abuse of discretion. See Allen, 397 US at
18 343–347 (holding that trial judges confronted with “disruptive”
defendants must be given “sufficient discretion to meet the
circumstances of each case” and concluding that there was “nothing”
in the record showing that the “trial judge did not act completely
within his discretion”). See United States v. Nathaniel Hilliard,
2026 WL 73977, slip op. at 20 (11th Cir. Jan. 9, 2026) (holding that
the district court “did not abuse its discretion” in its handling of a
disruptive defendant). See also Weldon v. State, 247 Ga. App. 17, 19
(2000) (stating that, where “circumstances may arise which
necessitate action by the trial judge to control an obstreperous or
disruptive defendant,” the “test on appeal” is “[a]buse of discretion”).
(i) Although Appellant concedes that “there [was] sufficient
evidence to support the court’s conclusion that [he] was disruptive,”
Appellant asserts that his behavior was focused on the insistence
upon a hearing to determine whether there was a communication
breakdown with his attorney, and that his behavior therefore was
not misconduct. Relying on State v. Fletcher, 252 Ga. 498 (1984),
Appellant argues that trial courts are authorized to remove a
19 defendant only if he demonstrates some “misconduct.”
This is a misstatement of Fletcher. There, a defendant was
removed from the court without warning after demonstrating
violent and disruptive behavior. Fletcher, 252 Ga. at 498. We held
that, under the circumstances, the defendant could be removed
without a warning, but that where a defendant is removed without
an initial warning and is subsequently brought before the court and
evidences no violent or disruptive behavior, Allen requires that the
court make inquiry as to the state of mind of the defendant or warn
him of the consequences of misconduct and inform him that by
proper conduct, he could regain the right to be present. 252 Ga. at
500–01. To the extent that there is a difference between disruptive
behavior and misconduct, Fletcher did not make that distinction but
expressly applied the standard in Allen. 252 Ga. at 501.
Moreover, we have made clear that “[a] defendant’s right to
counsel may not ‘be insisted upon in a manner that will obstruct an
orderly procedure in courts of justice[ ] and deprive such courts of
the exercise of their inherent powers to control the same.’” Lynd v.
20 State, 262 Ga. 58, 62 (1992) (quoting United States v. Burton, 584
F2d 485, 489 (D.C. Cir. 1978)). Here, Appellant was warned by the
court that he would be removed if he continued to disrupt the
proceedings, and he nevertheless continued to act in a disruptive
manner. See Allen, supra, 397 US at 343 (emphasizing that a
disruptive defendant can lose his right to be present after a
“warn[ing]” from a judge about his behavior). Therefore, the court
did not abuse its discretion in removing Appellant from the
courtroom. See Weaver v. State, 288 Ga. at 540–43 (holding that the
trial court did not abuse its discretion in removing from the trial a
defendant who had, among other things, “yelled and screamed
incoherently numerous times” during voir dire).
(ii) Second, Appellant argues that his waiver of his right to be
physically present was conditioned, at least in part, on the court’s
representation that he would be able to view his trial virtually and
that the trial court abused its discretion by failing to ensure
Appellant had such a capability after he was removed.
As an initial matter, a full review of the record makes it clear
21 that Appellant was removed for his disruptive conduct, rather than
being removed on the condition that he be allowed to see or hear the
trial virtually. Although the court stated at different portions of the
proceedings that it would “try” to set up a virtual way to see the
proceedings and, in one instance, stated that it planned to do so,
Appellant’s trial counsel never followed up on this statement but
instead continued participating in the proceedings without any
additional assurance that Appellant would be able to see and hear
the proceedings. Nor did Appellant, despite frequent check-ins, ever
insist on a way to see or hear the trial virtually. While he once
“mentioned” that the court may have had a “TV” for him to view the
proceedings, when Appellant was asked by the court on the following
day if he would like to watch the trial virtually, he said, “No.”
Therefore, the record shows that Appellant never attempted to
reclaim his right to be present. See Weaver, 288 Ga. at 540–43
(holding that the defendant’s right to be present was not violated
where defense counsel repeatedly visited the removed defendant
and informed the court that he did not want to return, and the court
22 had “firsthand knowledge of how difficult” the defendant could be).
Cf. Fletcher, 252 Ga. at 499–501 (affirming reversal of defendant’s
conviction where the disruptive defendant was given no initial
warning prior to his removal and, when later brought before the
court, evidenced no disruptive behavior).
Appellant’s argument that the trial court violated Appellant’s
right to be present by failing to let him see or hear the proceedings
virtually also fails. While we have held that the right to be present
certainly encompasses a right to see and hear the proceedings, 7 our
precedent does not support a separate right to do so virtually after
a disruptive defendant has been physically removed from the
courtroom. Though Appellant cites some cases that discuss virtual
proceedings, they do not require such accommodations. See Dukes v.
State, 361 Ga. App. 4, 7 (2021) (holding that the defendant, who was
kept in a holding cell “equipped with audio such that he could hear
7 See Champs v. State, 310 Ga. 832, 839 (2021) (“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.”) (cleaned up). 23 the proceedings” at the courthouse, voluntarily waived his right to
be present during his trial where he repeatedly announced that he
“did not want to sit with counsel in the courtroom and elected to sit
in a holding cell”). See also Illinois v. Allen, 397 US 337, 351 (1970)
(Brennan, J., concurring) (stating that when a defendant is excluded
from trial, the court “should” make reasonable efforts for him to
communicate with his attorney and noting that it is “not weakness
to mitigate the disadvantages of his expulsion as far as
technologically possible in the circumstances”).
3. Appellant further argues that the trial court erred in failing
to conduct a hearing before his request for new counsel was denied
and “based on a demonstrable breakdown in communication, failed
to replace [trial] counsel at [Appellant’s] insistence.” These claims
fail.
(a) As to Appellant’s first contention, this Court has never held
that a hearing is required before a court denies a defendant’s motion
to replace his counsel. Nor has Appellant cited any binding cases
24 supporting such a rule.8 But even if we assume that Appellant was
entitled to a hearing, Appellant’s claim still fails because the court
did, in fact, hear Appellant’s concerns regarding his counsel.
The court first granted Appellant an opportunity to address the
court about his concerns with his trial counsel on his first trial date.
At that time, Appellant claimed he was “out of communication” with
his attorney. Although Appellant points to this statement as
evidence of a breakdown of communication between Appellant and
trial counsel, the record shows that Appellant said during the
8 On appeal, Appellant relies heavily on a non-binding decision from the
Ninth Circuit, Nguyen, which requires trial courts in its Circuit to conduct a “sufficient inquiry” into a defendant’s request for a substitution of counsel. United States v. Nguyen, 262 F3d 998, 1004 (9th Cir. 2001). Nguyen is factually distinct from this case. There, a private defense attorney informed the judge that the defendant had attempted to retain him to replace his public defender, that he had just learned that the trial was set for that day, and therefore, his firm could not take the case. Id. at 999. The trial judge pointed out that it was “the eve of trial” and concluded that the court would not “delay the trial.” Id. at 1000. The trial judge therefore stated that the defendant’s current counsel would remain in the case, and the private defense attorney could come in as “associate counsel.” Id. at 1000. The private defense attorney then stated that he would not represent the defendant. Id. During the trial that afternoon, the defendant complained that the public defender representing him was “rude to him” and almost “never sat down and talked to him about his case.” Id. The defense attorney also acknowledged that his client “just [would not] talk to [him] anymore.” Id. at 1004. None of this occurred here. Without adopting the reasoning of Nguyen, we conclude that it is distinguishable for these reasons. 25 hearing that he had talked to trial counsel the night before. And
Appellant’s trial counsel was also given a chance to speak and
explained that the disagreement between the two was over trial
counsel’s opinion on the “value” of the case — that is, the wisdom of
going to trial on Appellant’s case — rather than trial counsel’s
confidence in his preparation for trial.
Although the court denied Appellant’s request for new trial
counsel at that time, it gave Appellant a second opportunity to
address the court at the start of his second trial date. After
Appellant was duly sworn, he only indicated vague complaints about
his counsel. And, again, the court denied his request to replace his
trial counsel after hearing those complaints.
Therefore, the court heard Appellant’s concerns and both trial
counsel and Appellant — the only available witnesses to the alleged
communication — were given an opportunity to speak about the
issue. Thus, Appellant’s claim that his request for new counsel was
not heard fails.
(b) Appellant also argues that the trial court erred in denying
26 Appellant’s motion to replace counsel. This claim also fails.
“[A]n indigent defendant has no right to compel the trial court
to appoint an attorney of his own choosing,” and thus the “choice of
appointed counsel is a matter governed by the trial court’s sound
exercise of discretion.” McCullough v. State, 304 Ga. 290, 296 (2018)
(citation omitted). That discretion may be abused “when an indigent
defendant’s choice of counsel is supported by objective
considerations, there are no countervailing considerations of
comparable weight, and yet the court denies the defendant’s request
to appoint or retain the counsel he prefers.” Id. at 296–97.
Appellant argues that a “demonstrable breakdown in
communication” with his trial counsel occurred because Appellant
and his trial counsel were “not communicating at all prior to and
then throughout the trial.” Indeed, we have held that a “complete
breakdown in communication” between counsel and his client may
support counsel’s discharge. See Bryant v. State, 268 Ga. 616, 617
n.4 (1997) (“[The defendant] failed to support the discharge of
counsel by setting forth any justifiable dissatisfaction with counsel,
27 such as conflict of interest, an irreconcilable conflict, or a complete
breakdown in communication between counsel and client.” (citation
omitted)).
Here, however, the record does not support Appellant’s
argument that he and his trial counsel “were not communicating at
all prior to and then throughout the trial.” At the time Appellant
complained that he was “out of communication” with his attorney,
Appellant also said that he had talked to counsel “last night.”
Therefore, any communication breakdown appears to have only
occurred after Appellant’s first motion had been denied.
Although there were several incidents where Appellant
unilaterally refused to speak or interact with his trial counsel during
the course of his subsequent trial, the record shows that Appellant’s
trial counsel demonstrated a continued willingness to speak with
Appellant. Trial counsel told the trial judge that Appellant wanted
an opportunity to address the court; he told the court about several
of Appellant’s concerns on the morning of his second set trial date;
he attempted to speak with Appellant at the court’s request; he
28 ensured that Appellant was informed of the withdrawal of
Appellant’s insanity plea; and trial counsel had at least one “brief”
meeting with Appellant. Therefore, the record does not show that
Appellant and his attorney “were not communicating at all prior to
and then throughout the trial,” and the court did not abuse its
discretion in denying Appellant’s request to replace his counsel on
the basis of a “demonstrable breakdown in communication.”
4. Appellant also argues that the trial court erred by failing to
instruct the jury regarding his absence from the courtroom.
Appellant did not request any instruction regarding his absence,
and so we review this claim for plain error only. Walton v. State, 920
SE2d 116, 128 (Ga. 2025).
To establish plain error, a defendant must show that an error occurred, was not affirmatively waived, was clear and obvious beyond reasonable dispute, and affected his substantial rights. If that showing is made, then we consider whether the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.
Profet v. State, 922 SE2d 33, 41 (Ga. 2025) (cleaned up). And if
Appellant “fails to show just one of these elements, we need not
29 analyze the rest.” Richardson v. State, 318 Ga. 690, 695 (2024).
Here, Appellant’s plain error claim fails because he has not
identified a legal error that is “clear or obvious under current law.”
Davis v. State, 312 Ga. 870, 874 (2021) (citation omitted) (“An error
cannot be plain where there is no controlling authority on point.”).
Though Appellant cites Georgia Court of Appeals cases where courts
gave an instruction concerning a defendant’s absence from the
courtroom, see, e.g., Sanders v. State, 242 Ga. App. 487, 490 (2000),
none of these cases require such an instruction. Furthermore,
Appellant has failed to identify any controlling precedent that
requires such an instruction, and we have found none. Therefore,
this enumeration fails. See Simmons v. State, 299 Ga. 370, 375
(2016) (denying that the defendant’s claim under the plain error
standard of review failed where there was “the absence of clear
authority” on the issue); Hill v. State, 321 Ga. 177, 184 (2025)
(same).
5. Finally, Appellant argues that the cumulative effect of the
court’s errors unfairly prejudiced Appellant’s defense, even if no
30 single error sufficiently did so. This claim also fails.
In considering a claim of cumulative error, we “evaluate only
the effects of matters determined to be error, not the cumulative
effect of non-errors.” O’Neal v. State, 316 Ga. 264, 271 (2023). As
explained above, Appellant has failed to show that the trial court
erred in any regard. Accordingly, “there are no errors to aggregate,
and his claim of cumulative error also fails.” Id.
Judgment affirmed. All the Justices concur.