Clarifying Waiver of the Defendant’s Right to be Present During Jury Viewings: A Commentary on Jacobs v. State (Supreme Court of Georgia, 2025)

1. Introduction

Steven Alford Jacobs was convicted by a Butts County jury of malice murder and related offenses arising out of the 2018 shooting death of Curtis Pitts. On appeal, Jacobs asserted a single enumerated error: the trial court allegedly violated his Georgia constitutional right “to be present, and see and hear, all the proceedings” by allowing the jury to inspect a van connected to the homicide while Jacobs remained inside the courtroom. The Supreme Court of Georgia rejected the claim, concluding that Jacobs knowingly waived his presence and affirming his convictions.

2. Summary of the Judgment

• The Court assumed—without expressly deciding—that a jury’s viewing of a crime-scene vehicle constitutes a “critical stage” triggering the constitutional presence right.
• It held, however, that the right is a personal one which can be relinquished, and that the trial court’s factual determination of waiver was supported by the record and therefore not clearly erroneous.
• Accordingly, Jacobs was not entitled to a new trial; the convictions and sentences (life without parole plus consecutive terms) were affirmed.

3. Analysis

3.1 Precedents Cited

The Court anchored its analysis in a line of Georgia authority defining the scope of the presence right and the mechanics of waiver:

• Nesby v. State, 310 Ga. 757 (2021) – Reaffirmed that the presence right attaches at any critical stage and enumerated categories of waiver.
• Reed v. State, 314 Ga. 534 (2022) – Clarified four accepted modes of waiver (personal, counsel at defendant’s express direction, counsel in open court with defendant present, or counsel’s waiver followed by acquiescence).
• Neal v. State, 313 Ga. 746 (2022) – Applied clearly erroneous standard to trial court’s waiver findings.
• Hardy v. State, 306 Ga. 654 (2019) – Noted that an unwaived violation is presumed prejudicial, necessitating reversal.
• Chance v. State, 156 Ga. 428 (1923) – Granted a new trial where a defendant was absent during the jury’s inspection of an automobile; distinguished here because the record lacked any evidence of waiver.
• Hulett v. State, 296 Ga. 49 (2014) – Cited only on collateral procedural point (vacatur of felony-murder counts by operation of law).

Collectively, these cases supplied the doctrinal framework for assessing whether Jacobs surrendered his presence right and, if so, whether the trial court’s finding should stand.

3.2 Legal Reasoning

1. Identification of the Right. Article I, § I, ¶ XII of the Georgia Constitution guarantees a criminal defendant the right to be present “during trial.” The Court assumed that a jury view of evidence outside the courtroom meets the “critical stage” requirement because jurors are exposed to potentially influential sensory impressions.
2. Waiver Principles. Riding on Nesby/Reed, the Court reiterated that the right is personal but waivable. Counsel may waive for the defendant, and subsequent acquiescence will suffice.
3. Standard of Review. Waiver is a factual finding reviewed for “clear error.” Unless the record “flatly contradicts” the trial court, the finding stands.
4. Application to the Facts. Evidence supporting waiver included:
   • Testimony by trial counsel Devlin Cooper that he discussed Jacobs’s right to go outside, suggested it could aid the defense, and that Jacobs expressly declined (“said no” and appeared “creeped out”).
   • Additional corroboration that the defense team talked with Jacobs multiple times about the opportunity.
   • The trial court’s on-the-record colloquy with counsel regarding security logistics, witnessed by Jacobs.
   Absent a transcript of every sidebar conversation, the Court still credited counsel’s unrefuted testimony, concluding the evidence was “consistent with waiver.”
5. Distinguishing Chance (1923). Unlike in Chance, the 2025 record was not silent on waiver; it contained affirmative proof.

3.3 Impact of the Decision

The ruling is significant for several reasons:

• Trial Practice Clarity. Judges and practitioners now have updated, Supreme Court-level guidance that a jury view outside the courtroom is indeed a critical stage, but the right to attend may be waived the same way as other presence rights.
• Record-Building Imperative. Defense counsel must create a clear record of any conversation with the defendant concerning attendance at jury viewings; doing so can insulate favorable verdicts from reversal or, conversely, preserve the issue for appeal.
• Limiting Presumption of Harm. Jacobs reinforces that the Hardy presumption of prejudice only applies when the right was not waived; when waiver is shown, the presumption evaporates.
• Future Appeals. Defendants challenging absence from jury inspections must now confront Jacobs, making reversal unlikely unless the record is affirmatively silent or contradicts waiver.
• Comparative Jurisprudence. Although the case interprets the Georgia Constitution, its reasoning mirrors federal standards (e.g., United States v. Gagnon, 470 U.S. 522 (1985)), potentially making it persuasive elsewhere.

4. Complex Concepts Simplified

• Critical Stage: Any moment in criminal proceedings where the defendant’s legal rights could be detrimentally affected—trial testimony, charge conferences, jury viewings, etc.
• Waiver vs. Acquiescence: “Waiver” entails an intentional relinquishment; “acquiescence” is passive acceptance after counsel’s waiver—for example, remaining silent when the judge announces a plan.
• Clear Error Standard: An appellate court overturns a trial court’s factual finding only if the entire record leaves it “firmly convinced” a mistake was made.
• Malice Murder vs. Felony Murder: Under Georgia law, malice murder requires intent to kill; felony murder does not require intent but occurs during commission of another felony. When both are charged for the same homicide, felony-murder counts vacate upon a malice-murder conviction.
• Merging Counts: The process by which lesser-included offenses are absorbed into a greater offense to prevent redundant punishment.

5. Conclusion

Jacobs v. State marks an important refinement of Georgia’s law on the defendant’s right to be present during off-site evidentiary viewings. By holding that a properly documented waiver by counsel—followed by the defendant’s acquiescence—satisfies constitutional requirements, the Supreme Court has balanced the imperative of fair trial procedure against practical courtroom administration. Future litigants must heed the Court’s admonition: if a defendant prefers to be present, speak up; if counsel elects otherwise, ensure the decision is discussed on the record. Absent such clarity, trial courts will rely on Jacobs to uphold convictions where waiver can reasonably be inferred.