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Final Copy 291 Ga. 326 S12A0634. GRIFFIN v. TERRY. HUNSTEIN, Presiding Justice. We granted Appellant Melvin Griffin's application for a certificate of probable cause to examine whether the habeas court erred in rejecting Griffin's claim of ineffective assistance of appellate counsel. Having answered that question in the negative, we affirm. Griffin was convicted of murder and related offenses and was sentenced to life imprisonment plus 65 years consecutive. His convictions and sentences were affirmed on appeal, except as to one lesser included count, which was vacated. Griffin v. State, 265 Ga. 552 (458 SE2d 813) (1995). In 2008, through counsel, Griffin filed a petition for habeas corpus claiming that his right to be present at critical stages of trial had been violated when the trial judge questioned a juror during the trial outside Griffin's presence. Griffin also asserted a claim of ineffective assistance of appellate counsel for his attorney's failure to raise the right-to-be-present issue on appeal. After an evidentiary hearing at which Griffin and his former appellate counsel testified, the habeas court denied the habeas petition.

The record undisputedly reflects that, after Griffin's trial had commenced, a juror informed the trial judge that she wanted to clarify her response to a question at voir dire the previous day asking whether prospective jurors had any family members who had been arrested and whom they felt had been treated unfairly. This question was posed by the prosecutor in the context of other questions seeking to elicit any ill will among prospective jurors towards law enforcement. Though she had not so indicated during voir dire, the juror reported that two of her nephews and one of her nieces had been accused of homicide in another state approximately 20 years earlier, and explained that she had not revealed this information during voir dire because she had thought the question was limited to arrests in her immediate family. Upon the court's inquiry, which took place in the presence of the prosecutor and defense counsel, she indicated that she did not think her newly disclosed history would affect her ability to be an impartial juror, and she was permitted to remain on the jury. Subsequently, Griffin was brought into the courtroom, and the trial resumed with no further mention of the colloquy. At no time during the trial proceedings was there any objection to Griffin's absence during the juror colloquy, nor was this issue raised on direct appeal.
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1. "It is the legal right of a person accused of crime in this State to be present at all stages of his trial, such right being derived from our Constitution. . . . This principle has been recognized since the establishment of this court." (Citation omitted.) Wilson v. State, 212 Ga. 73, 74 (90 SE2d 557) (1955). Indeed, we have described this right as a "`fundamental right and a foundational aspect of due process of law.' [Cit.]" Ward v. State, 288 Ga. 641, 645 (4) (706 SE2d 430) (2011). Accordingly, we have held that violations of this right, once established, are not subject to the typical "harmless error" review by which most trial errors are assessed on direct appeal. See, e.g., id. at 645-647 (4) (prejudice presumed, and thus reversal required, where juror excused by trial court outside defendants' presence); Sammons v. State, 279 Ga. 386, 387 (2) (612 SE2d 785) (2005) ("[i]f a defendant is denied the right to be present at a critical stage, prejudice is presumed and a new trial is mandated"); see also Brooks v. State, 271 Ga. 456 (2) (519 SE2d 907) (1999) (reversing conviction, without analysis of prejudice, where defendant absent from in-chambers conferences during which jury strikes were conducted). Here, however, it is undisputed that Griffin's absence from the juror colloquy not only went unobjected to at trial but also was not raised on direct
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appeal. Accordingly, as correctly recognized by the habeas court, Griffin's substantive right-to-be-present claim was procedurally defaulted, and Griffin has made no assertion of cause and prejudice such as might overcome this default. See OCGA

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