Nesby v. State

Javian Nesby was convicted of malice murder and other crimes after he shot and killed Jordan Morris during an encounter he said involved earlier threats and gunfire against his fiancee. Nesby claimed self-defense, but surveillance video showed him chasing and shooting at Morris rather than the other way around, and a jury convicted him. On appeal, Nesby argued that the trial court violated his right under the Georgia Constitution to be present at all critical stages of his trial because the judge held several bench conferences with the lawyers, both during jury selection and during the trial, without Nesby there. The Supreme Court of Georgia disagreed. It found no record of what was discussed at most of these conferences and concluded that even the one conference tied to excusing three jurors did not require a new trial, because Nesby was present for the surrounding proceedings, his lawyer discussed the issues with him, and he never objected. The court affirmed the conviction but sent the case back to fix a clerical error in the written sentence.

A defendant's right under the Georgia Constitution to be present at critical trial stages is not violated by unrecorded bench conferences on legal or procedural matters, and even where a conference touches jury selection, the defendant can acquiesce in his absence by staying silent after learning what occurred.

The ruling confirms that Georgia trial judges may hold routine, unrecorded bench conferences with lawyers without the defendant physically present, so long as the defendant does not object once informed and the conferences involve legal or procedural matters rather than jury selection decisions made without his knowledge.

Affirmed in part and remanded in part to correct a sentencing error

1. The court explained that the Georgia Constitution guarantees a defendant the right to be present at any 'critical stage' of trial, meaning a point where his rights could be lost, defenses waived, or the outcome substantially affected, including when jury composition is selected or changed.
2. It noted that bench conferences limited to legal arguments or logistical matters, where the defendant's presence would add nothing to the fairness of the proceeding, do not count as critical stages and so do not trigger this right.
3. Because none of the bench conferences Nesby complained about were transcribed and he offered no evidence about what was actually discussed, the court held that speculation about their content could not support a claim that his right to be present was violated.
4. Even assuming the one conference tied to excusing three jurors implicated his right to be present, the court applied the rule that a defendant can waive or acquiesce in his absence, including through his lawyer, if he later learns what happened and stays silent.
5. Applying that rule, the court found Nesby heard the relevant juror exemption discussion in open court, his lawyer told him about issues raised at the conferences, and Nesby raised no objection when the jurors were excused, so he acquiesced in the limited proceedings held without him.

• malice murder conviction
• right to be present
• bench conferences
• self-defense claim
• sentencing error