¶1In the Supreme Court of Georgia
¶2 Decided: October 5, 2021
¶3 S21A1002. STEEN v. THE STATE.
¶4 BOGGS, Presiding Justice.
¶5 Dustin Michael Steen was convicted of malice murder and
¶6sentenced to life in prison without the possibility of parole in
¶7connection with the 2015 stabbing death of Edward Newhouse in an
¶8altercation outside a bar in Burke County. 1 The trial court denied
¶9 1 The murder occurred on February 27, 2015. On April 29, 2015, a Burke County grand jury indicted Steen for malice murder, felony murder, and possession of a knife during the commission of a crime. Steen was tried before a jury from February 22 to 24, 2016, and found guilty of all charges. On February 24, 2016, Steen was sentenced to serve life in prison without the possibility of parole on the malice murder conviction, with five years in prison to be served consecutively on the knife charge. The trial court purported to merge the felony murder count, although it was actually vacated by operation of law. See Malcolm v. State, 263 Ga. 369, 373 (5) (434 SE2d 479) (1993). Steen’s trial counsel filed a timely motion for new trial, which was amended by Steen’s first appellate counsel on February 21, 2017. The motion was heard on February 28 and March 28, 2017, and an order was entered on January 24, 2019, denying Steen’s motion for new trial. That order was vacated on February 25, 2019, because Steen’s second appellate counsel represented that additional grounds needed to be presented. Second appellate counsel filed an amended motion for new trial on April 8, 2019. After additional hearings on Steen’s motion for new trial, and he appeals, asserting seven
¶10enumerations of error, including violation of his Georgia
¶11constitutional right to be present at all critical stages of his trial by
¶12his exclusion from unrecorded bench conferences during jury
¶13selection. See generally Zamora v. State, 291 Ga. 512, 517-518 (7)
¶14(a), (b) (731 SE2d 658) (2012).
¶15 Steen contends the evidence presented at his trial was
¶16insufficient to support his conviction, but we affirm that part of the
¶17trial court’s judgment. We do not, however, address any of the
¶18remaining enumerations of error. Instead, for the reasons stated
¶19below, we vacate the remainder of the trial court’s order denying
¶20Steen’s motion for new trial and remand the case for the trial court
¶21to rule in the first instance on Steen’s right-to-be-present claim.
¶22 1. Construed in the light most favorable to the jury’s verdict,
¶23the evidence shows that on the evening of Friday, February 27, 2015,
¶24Steen and a co-worker, Nick Malcom, cooked out, had a few beers,
¶25April 17 and October 16, 2019, Steen’s motion was denied on February 15, 2021. Steen’s notice of appeal was filed on February 22, 2021, and the case was docketed in this Court for the August 2021 term. 2 and went to a local bar, then known as BFE Bar & Grill. The owner
¶26of the bar testified that Malcom had been a problem in the past,
¶27being belligerent and not paying his bill. Several witnesses testified
¶28that on that Friday night, Malcom began behaving in a loud,
¶29boisterous, and threatening manner to patrons, to the point that
¶30employees informed the bar’s owner of the problem. The owner
¶31approached Malcom and asked him to leave, but Malcom refused.
¶32Steen tried to persuade Malcom to leave, eventually pushing him
¶33outside while Malcom “threw a fit.” A surveillance camera recording
¶34shows Steen and Malcom falling to the ground just outside the bar’s
¶35entrance. 2
¶36 A group of patrons, including Newhouse, as well as the bar
¶37owner, followed the two men outside to Steen’s car. Steen got into
¶38the car; Malcom began to get in but then “started screaming like a
¶39crazy person.” The owner testified that Malcom screamed, “Are you
¶40ready to do this?” and Steen yelled back, “Let’s do this.” Steen got
¶41 2 An audio and video recording from the bar’s surveillance cameras was played for the jury during the testimony of the bar owner, who identified the individuals shown and explained what occurred as the recording was played. 3 back out of the car and started walking towards the bar. Newhouse,
¶42who had been returning to the bar, turned around and went towards
¶43Steen and Malcom, the three of them began arguing, and Steen and
¶44Newhouse grabbed each other and began to fight.
¶45 Almost immediately, Newhouse fell to the ground, face down,
¶46with Steen on top of him. Another patron went to pull Steen off
¶47Newhouse and then yelled that there was a knife. The bar owner,
¶48attempting to break up the fight, sprayed Steen with pepper spray
¶49and saw a knife in Steen’s hand as Steen pulled the blade out of
¶50Newhouse’s body. Steen leaned back to avoid the spray and then
¶51resumed stabbing Newhouse, so the owner shot Steen in the back.
¶52Another witness fired two shots in the air, and Steen was pulled off
¶53Newhouse; still another witness testified he saw the knife in
¶54Newhouse’s back. Steen stood over Newhouse yelling, “You don’t
¶55know me,” and “You deserved this,” and then drove away in his car.
¶56A deputy sheriff found the car “up against a tree” a short distance
¶57away, with Steen semi-conscious in the driver’s seat, smelling of
¶58alcohol and saying that he had been shot. Steen was taken to the
¶59 4 hospital and treated for his injuries.
¶60 Newhouse was lying on the ground unresponsive, despite
¶61attempts by witnesses to render aid. A paramedic who responded to
¶62the scene testified that when he arrived, Newhouse was not
¶63breathing and had no pulse. A medical examiner testified that
¶64Newhouse had a total of seven cut wounds and ten stab wounds and
¶65that one of the latter pierced both ventricles of his heart, causing his
¶66death.
¶67 Steen testified at trial and disputed the other witnesses’
¶68accounts of the events in the parking lot. He contended that a group
¶69of men followed Malcom and him out of the bar, threatening them,
¶70and that while he was trying to persuade Malcom to get in the car
¶71and leave, Newhouse ran up and punched Steen in the face.
¶72According to Steen, “[By the t]ime I hit the ground . . . they were on
¶73me.” He testified that he was “instantly” sprayed in the eyes with
¶74mace, struck in the head and the back, and shot in the back. He
¶75claims that only then did he draw his knife to defend himself,
¶76believing that his life was in danger.
¶77 5 Steen contends that the State failed to present sufficient
¶78evidence to disprove his claim of self-defense beyond a reasonable
¶79doubt, asserting that he defended himself only after he was set upon
¶80by multiple assailants who attacked, blinded, and shot him. The
¶81evidence presented at trial and summarized above, however, was
¶82sufficient to enable a rational trier of fact to conclude beyond a
¶83reasonable doubt that Steen did not act in self-defense but was
¶84guilty of malice murder and possession of a knife in the commission
¶85of a crime. See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99
¶86SCt 2781, 61 LE2d 560) (1979). While Steen disputes the evidence
¶87and the credibility of the witnesses, “[i]ssues of witness credibility
¶88and justification are for the jury to decide, and the jury is free to
¶89reject a defendant’s claim that he acted in self-defense.” (Citations
¶90and punctuation omitted.) Butler v. State, 309 Ga. 755, 758 (1) (848
¶91SE2d 97) (2020).
¶92 2. We next address Steen’s right-to-be-present claim.
¶93 Since the earliest years of this Court, we have held that the Georgia Constitution guarantees criminal defendants the right to be present, and see and hear, all the
¶94 6 proceedings which are had against him on the trial before the Court. It also has long been established that proceedings at which the jury composition is selected or changed are critical stages at which the defendant is entitled to be present.
¶95(Citations and punctuation omitted.) Zamora, 291 Ga. at 517-518 (7)
¶96(b). However,
¶97 the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses. 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.
¶98(Citations and punctuation omitted.) Champ v. State, 310 Ga. 832,
¶99841 (2) (c) (854 SE2d 706) (2021). Acquiescence occurs if a defendant
¶100is aware of the proceedings taking place in his absence but remains
¶101silent, “so long as he had sufficient information concerning the
¶102matters occurring outside his presence for his silence to be fairly
¶103construed as consent.” (Citations and punctuation omitted.) Id. See
¶104also Burney v. State, 299 Ga. 813, 819-821 (3) (b) (792 SE2d 354)
¶105(2016).
¶106 7 The transcript of Steen’s trial reflects that, after the jurors
¶107were sworn and retired to the jury room, the trial court announced
¶108in open court: “Just for the record, let it reflect that we had a couple
¶109of conferences up here at the bench about some of the jurors, and by
¶110agreement we agreed to excuse two jurors,” identifying them by
¶111name and by number. 3 The trial court then inquired of counsel if
¶112that account was correct, and both counsel affirmed that it was. The
¶113trial proceeded without any objection on the record from Steen or his
¶114trial counsel regarding his right to be present at the bench
¶115conferences.
¶116 In an amended motion for new trial filed by Steen’s second
¶117appellate counsel in April 2019, Steen’s right-to-be-present claim
¶118was raised for the first time. During one of the four hearings on
¶119Steen’s motion for new trial, trial counsel testified that Steen was
¶120present at counsel table during the bench conferences at issue and
¶121never indicated that he wished to participate in them. Trial counsel
¶122further testified that she and her co-counsel “generally sitting at . .
¶123 3 The trial transcript notes two bench conferences during jury selection. 8 . [counsel] table discussed a lot of the decisions that we were making
¶124in voir dire with Mr. Steen.” But at a later hearing, Steen testified
¶125that he recalled only one bench conference during jury selection and
¶126that he had “no clue” what was discussed there. Asked, “Did the
¶127court or [trial counsel] educate you as to what they had discussed at
¶128the bench conference?” Steen responded, “She did not.”
¶129 After the fourth hearing on Steen’s motion for new trial, the
¶130trial court issued an order making findings of fact and conclusions
¶131of law with regard to five assertions of error by Steen and
¶132concluding, “For the above reasons this Court is denying the
¶133defendant’s motion for new trial.” But those reasons did not include
¶134a ruling on Steen’s right-to-be-present claim, and the trial court
¶135made no findings of fact or conclusions of law regarding it.
¶136 “It is well settled that a trial court is not required to issue
¶137written findings of fact and conclusions of law when deciding a
¶138motion for new trial.” (Citation omitted.) Lynn v. State, 310 Ga. 608,
¶139611 (2) (852 SE2d 843) (2020). And “in the absence of explicit factual
¶140and credibility findings by the trial court, we presume implicit
¶141 9 findings were made supporting the trial court’s decision.” (Citations
¶142and punctuation omitted.) Anthony v. State, 311 Ga. 293, 297 (3)
¶143(857 SE2d 682) (2021). This is certainly true when, as in Lynn or
¶144Anthony, the trial court denies a defendant’s motion for new trial in
¶145a summary order.
¶146 In contrast, here the trial court made explicit findings of fact
¶147and conclusions of law with respect to five other assertions of error
¶148by Steen, and declared that it was denying Steen’s motion for new
¶149trial “[f]or the above reasons,” thus expressly limiting its findings to
¶150the errors addressed. And the testimony at the hearings on Steen’s
¶151motion for new trial is in conflict with respect to whether Steen “had
¶152sufficient information concerning the matters occurring outside his
¶153presence” to waive his right to be present at the bench conferences
¶154during jury selection. Champ, 310 Ga. at 841 (2) (c).
¶155 The record does not show that the trial court made any
¶156credibility determinations in denying Steen’s right-to-be-present
¶157claim. This issue therefore must be resolved in the first instance by
¶158the trial court, as “decisions regarding credibility are uniquely the
¶159 10 province of the trier of fact.” (Citation and punctuation omitted.)
¶160Lord v. State, 304 Ga. 532, 534 n.4 (1) (820 SE2d 16) (2018). See also
¶161Rouzan v. State, 308 Ga. 894, 901 (2) (843 SE2d 814) (2020)
¶162(vacating and remanding for trial court to exercise its discretion to
¶163determine if other acts evidence was properly admitted). Moreover,
¶164at oral argument, counsel for Steen and for the State agreed that a
¶165remand would be appropriate for the trial court to rule on the right-
¶166to-be-present claim.
¶167 Accordingly, we vacate the trial court’s order in part and
¶168remand the case to that court “to find the pertinent facts and then
¶169to apply the correct legal standard to resolve the question of [Steen’s]
¶170waiver of his right to be present,” making the necessary credibility
¶171determinations and resolving any “conflicting and ambiguous”
¶172evidence. (Citation and punctuation omitted.) Champ, 310 Ga. at
¶173847 (2) (c)4; see also Rouzan, 309 Ga. at 901 (2). Once the trial court
¶174enters its order on remand, any party will have 30 days to file a new
¶175 4 In Champ, the case was remanded for a hearing as well as the required findings, because the right-to-be-present claim was raised for the first time on appeal. 11 notice of appeal of any decision in the order on remand and any other
¶176enumeration of error not addressed in this opinion.
¶177 Judgment affirmed in part and vacated in part, and case remanded with direction. All the Justices concur.
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