This is the third appearance of this case before us. See
Lowe v. State,
Defendant contended Mr. Thompson should not have been permitted to identify defendant in court as pre-trial identification procedures were impermissibly tainted. Secondly, he asserts that he was denied a "public trial” because the "court erred in excluding the public from the courtroom” over his objection. He appeals. Held:
1. A police detective took "six or seven” photographs to the home of Mr. Thompson. He ultimately identified defendant’s photograph. The detective then advised him *434 defendant "had been arrested before for the same offense and also . . . for murder, killing a boy in a holdup . . . had committed several robberies in that area and they just never had been able to pin anything on him and that he also killed a boy a few nights before.” Later, a lineup was held in the courtroom during the preliminary hearing and defendant was again identified.
"[C]onvictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States,
We find no prejudice for several reasons. First, defendant was clearly observed by the witness at a distance of "12 to 18 inches” during the incident. He testified that he "saw his face ... saw it clearly... He made an indelible impression on me that night when he came to the window of the car. I am identifying him on that basis.” We are convinced that the witness’ identification of defendant had a source independent of the photographic display.
Secondly, the defendant was identified by a witness who saw defendant shoot the victim and had known defendant for "eight or nine years.” Thus, even if the procedure followed had been error, no harm was done to defendant who was identified conclusively by other witnesses as the person who shot the victim. While we do not approve of the method used in this case, we find no merit to this enumeration.
See Dodd v. State,
2. The judge announced that he had been advised by the district attorney that the next state’s witness "was afraid to testify because of the fear of possible bodily harm if the witness testified in open court in the presence of certain persons who lived in the same neighborhood where some of the parties in this case live.” He announced that "it would be in the interest of justice that the spectators be temporarily excluded from the courtroom for the next few minutes . . . [and then] all the spectators might come back. . .” The defendant objected on the ground that "sufficient cause has not been shown ... to exclude the public . . . [which] would deny the defendant on trial his right to an open and public trial.”
The Sixth Amendment to the United States Constitution and Art. I, Sec. I, Par. V of the Georgia Constitution of 1945 guarantees, inter alia, that "[e]very person charged with an offense against the laws of this State . . . shall have a public and speedy trial by an impartial jury.” The purpose of the requirement for a "public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned.” Estes v. Texas,
The right to a public trial is deeply rooted in the history and jurisprudence of our nation. We distrust secret inquisitions and star chamber proceedings. Presence of the press, the bar, and spectators guard against possible abuse of the judicial process (In re Oliver,
*436
"[I]t is a well-recognized principle of our law that the judges of . . . [our] courts are invested with a wide discretion in the management of the business before them, and this discretion will not be controlled unless it is shown to have been manifestly abused.”
Perryman v. State,
Closing the courtroom to
spectators
is a frequent and accepted practice where lurid details of sexual acts must be related by a female witness. Harris v. Stephens, 361 F2d 888 (8th Cir. 1966). And appellate courts find no fault with such procedure where "all spectators except those who were members of the press or members of the bar, or relatives ... or close friends of defendant, or relatives or close friends of the minor witnesses” have been excluded. Geise v. United States, 262 F2d 151 (9th Cir. 1958), cert. den.,
In balancing the competing interests of the witness, the defendant, and justice, where the judge closes the courtroom to the general public, but otherwise keeps it open to the press and bar, a defendant would not necessarily be deprived of a "public trial.” People v. Hagan,
We find no abuse of discretion of the court in the exclusion of "spectators” during the testimony of one witness who was in "fear of possible harm” because of testimony to be given.
Judgment affirmed.