*1 drivers, continued to evade safety of the other disregard for “ the nat- to intend ‘(E)very presumed pursuing officers. conduct, if particularly consequences probable and ural ” safety or lives of others.’ dangerous to be unlawful and conduct that he Helton’s contentions Accordingly, despite Keye, supra at 708. cars, his conduct any of the other intentionally collide with did not Jordan v. negligence. See criminal to no less than clearly amounted (1994). 917) “Thus, notwith- (2) his sole de- constituted contention that accident standing [Helton’s] thereon since fense, required give charge was not (Citations punctuation by the evidence.” was not authorized omitted.) Gaston, 478. supra at J., J., Blackburn, concur. Birdsong,
Judgment P. affirmed. 1995. Decided March Whitman, L. Dauid appellant. for Dupree, Assistant Porter, Attorney, Nancy J. District
Daniel J. Attorney, District appellee. for
A94A2345. v. THE STATE. PERRY v. THE STATE. A94A2346. HUNTER Judge. Smith, were indicted and convicted Perry
Aaron and Carlton Hunter 16-5-40, robbery, OCGA jury kidnapping, OCGA and armed § denied, they appeal. Their for new trial were 16-8-41.1 motions as error the conduct Perry and Hunter enumerate testimony of during the removing them from the courtroom court presence jury, Out of the three rebuttal witnesses for the State. afraid the witnesses were prosecutor informed the trial court agreed speak court lives. The trial and feared for their proceedings appellants objected to Counsel for with the witnesses. over- The trial court presence of their clients. taking place out of the court- removed from objections appellants ordered ruled the room while the witnesses were examined. contention, which took proceedings
Contrary the dissent’s robbery. ap- defendant, Hunter, In an earlier of armed A third Aaron was convicted Appeals No. affirmed. Hunter v. peal, Case Hunter’s conviction was Aaron (June 23, 1994, unpublished). here. not raise the issue discussed He did A94A1137
place clearly were excluded were not “a conference dealing solely questions chambers of law.” Three gave out of on the rebuttal issues them, which the State had primarily called concerning the alibi of co-defendant his attorney. communications with This and, lengthy according to Hunter, lasted almost three hours. *2 two the witnesses respect any lives; testified with to fear for their both testified that no threats had been made them they were not fearful the defendants, uneasy but rather were testifying about and about judicial process general. in Two of the witnesses later testified before essentially to the same substantive matters to which testified earlier before the clearly trial court. This was not a “confer- on “question law,” ence” testimony given by three witnesses for the State.
The trial court in removing appellants courtroom, erred from the objection, over while witnesses testified for the in State a criminal prosecution. is, face, This on its of appellants’ rights violation under the tions, Georgia confrontation clauses of the and United States Constitu- right as well as present at their trial under Ga. “ Const. Art. Par. XII. ‘The his accused and counsel right present have the to every stage be of the proceedings and personally see and know what is being done in the say case. To that injury results appears when it that what occurred their absence regular would, was effect, practically away do this great important right, one element of which is to see it that to place what does take is in accord good practice.’ with law and [Cits.]” State, (90 Wilson v. (1955) (new Ga. 74-75 SE2d trial granted where portion defendant closing absent of the State’s ar- gument; counsel for defendant could not presence waive defendant’s acquiescence). without “We think right that to be all stages of among ranks the defendant’s most substantial rights. It importance to, ranks next in with, if par not on a presumed be proved to be innocent guilty presence until . . . ‘The counsel was no substitute for that of [Perry on trial. [men] should present.’ State, have been Pierce Hunter] v. 47 Ga. [Cit.]” (171 731) (1933) (reversible SE grant in failing error portion mistrial where defendant absent for of the closing State’s ar- gument).
Appellants’ right to
during argument
even
of counsel
unquestioned;
certainly appellants
had
while
witnesses testified
if
testimony
them. Even
was ostensi-
bly in
proffer,
proceed-
nature
that does not transform those
ings
“conference,”
into a
presence
as the dissent contends. The
crucial;
during
may identify
accused
actual
inconsis-
problems
are
unknown
a witness’s
tencies or other
to his
tion.
attorney
attorney
may guide
in effective cross-examina-
authority
provide
cited
the dissent do not
cases
unprecedented
of confrontation.
and drastic curtailment
466) (1974), appel
In
Ga.
Wanzer
judge’s
in the
cham
a motion for mistrial
lant’s counsel initiated
presence
requesting
client,
in the
who was
bers without
pres
made.
next room when the motion was
jurors
questioning of
in connec
in the
ent
courtroom
Supreme
held that under
motion. The
tion with the
denying
presented
particular
did not err
facts
the trial court
the
the motion for mistrial. Ortiz
(2)
App. 532,
92) (1988),
allowing
approved
practice
victims
we
placed
angle,
at an
so
from a chair
child molestation cases
testifying.
directly
How
not stare
at the accused
need
hearing
in full
ever,
of
in that
remained
view and
the child victim
jury.
court,
accused,
In Andrews
and the
263) (1943),
requested
court-appointed
dis
84, 94
the consent
of and with
missal
Supreme
Court held
retained counsel. The
defendant’s
appointed
releasing
counsel, which the court
*3
the trial court’s action
right,”
gratuity
id.,
no
had
“a
to which the defendant
described as
479)
Gray State,
testified that threats had made been them and were not actual fear inquiries may necessary for their lives. What may protect what remedies crafted witness from the threat of harm, physical imminent we reserve for decision when that issue is presented. squarely instance, however, In this the trial court erred in barring appellants from the courtroom of three required. a new therefore trial is Appellants’ remaining enumerations error need not be ad- dressed, as unlikely involve matters recur on retrial.
Judgment Birdsong, J., J., Andrews, Pope, reversed. P. P. John- son, JJ., Ruffin, J., Blackburn and Beasley, concur. spe- C. concurs cially. J., McMurray, P. dissents. Judge, concurring Chief specially.
Beasley, Three rebuttal witnesses for the State were examined outside the (and presence of the jury), present. defendants Counsel for each of the objected three co-defendants on trial on the ground the defendants had a constitutional to be at all proceedings in the trial. The three company witnesses were from the at which co-defendant Aaron Hunter had testified he worked on the day They the time of the incident on trial. testified that Aaron Hunter did not company work for the and that the time sheet he presented forgery, was a thus rebutting alibi. Two them testi- again, effect, fied to the same of defendants and the jury.
Appellant Hunter on argument per- rests his “the legal right son accused of crime in stages State to be at all (1955). trial.” Wilson It is de- Constitution, rived from the XII, Art. Par. provides person deprived that “No shall be pros- defend, ecute or either in attorney, person’s an own in any cause cites, however, courts this state.” He Paragraph XIV, which contains the confrontation clause.
Appellant Perry argument rests in support every stage on what terms the confrontation clauses of Constitutions, citing United States XII Paragraph *4 Bill Rights of and the federal Sixth Amendment. Federal constitutional law need not decided this case is an because there adequate remedy. XII, state constitutional lies in Paragraph It but probably not in Paragraph XIV.
The three witnesses ap- at issue were not witnesses against either pellant but rather their Although co-defendant. defendants were not when pres- were first examined out of the jury’s fear, ence due to professed some of them two were examined and cross-examined when the and defendants returned to the court-
753 fully those Thus confronted third was not called. room not witnesses were jury, testified front of the witnesses who did Perry’s Appellant of them. Aaron against either pre- did Carlton Hunter not any cross-examination. not even conduct work, alibi, that he was at presented his Aaron Hunter sent an alibi. alibi, testimony. Perry presented his Aaron through his own office, through the dentist. at the dentist’s directly not relate though Even the witnesses’ did presented by their appellants two to the alibi either of these alone, involuntary ab Aaron Hunter for himself co-defendant a during preliminary constituted of their sence It stages at of their trial. all clear violation their constitution, 1777, Article Georgia’s first that of goes back least to that, I because the witnesses did not LVIII.3 cannot conclude impossible to them, It is discern there was harmless error. undermining of their co-defendant’s alibi infected whether long the law that importantly, own as well. More has been defenses (2) (1852). 25, 12 need be shown. Wade injury no Ga. 28 necessary. reasons, I agree For these that a new trial McMurray, dissenting. Presiding Judge, legal “It is crime this State a accused of trial, being our all derived from stages such State, 73, Wilson v. Constitution, Ga. Par. [Art. XII].” 557). However, con rights, along these with additional Constitutions rights frontation under and United States way may give appropriate are not absolute and circumstances Wanzer legitimate process. other the criminal circumstances 466); Ortiz v. 523, Ga. 92). dur- In the trial court judice case sub the sole matter before the law, proffer from ing defendants’ absence was a contested serving only State’s witnesses to frame and define a rule jurisdictions recognize general majority issue. error, error, prejudicial or can be based claim at least no claim of upon defendant, the trial of pending of a exclusion or absence case, courtroom, court from from a conference between question of law. 85 attorneys, on or discussion of argument 955, 1008, 2; As well stated ALR2d 23 ALR4th 16. § personal presence prisoner’s right century ago, almost half a “[t]he sentence, felony arraignment throughout the trial from interest, inalienable is an anything when that can affect done Co., McElreath, Georgia, p. The Harrison 3 Walter A Treatise of the Constitution *5 It rigidly guarded. Yet, one. is to in jealously protection its enforcement, it must not enlarged be so as to exceed its true scope thereby made inquiry to exclude all into and consideration of purely legal by matters judge reality the trial which are in fact and merely prudent preparation careful and resumption for the and con- Virginia, Williams duct of the trial.” Va. SE2d 411).
In the judice, case sub the trial court elected to conduct an counsel, chambers conference with actually albeit the conference was conducted the courtroom logistical as matter of convenience. The matter for request decision was the State’s the of three additional rebuttal witnesses to the absence of appellants and their In retrospect, co-defendant. recognize we that request such a granted, could not have been request was face, meritless on its correctly and that the have conference could led the trial court’s rejecting inevitable decision the State’s re- quest. apparent court, it is perhaps confused by security concerns of by prosecuting the witnesses related attorney, immediately did not recognize the fundamental nature of the legal question Being before it. uncertain the correct resolution issue, proceed the trial court elected to in the manner found defective majority. view, my majority provi- has extended constitutional beyond
sions at issue
I
commonly
intended and
stated bounds.
would hold that a
solely
ques-
conference
chambers dealing
tions
part
law is not
in a
trial
constitutional
sense. This
the rule
implicitly
which was at least
adopted by
Supreme
our
by citing
foreign
jurisdiction
approval
proposition
case with
for
Ferrell v.
(12) (401
741).
261 Ga.
I
would hold
judice
suspended
trial
the case sub
question
court dealt with a
attorney
of law
prosecuting
raised
and that there was no constitutional error arising from the absence of
appellants during
Furthermore,
consideration of that
of law.
there was no action taken
any
upon
which had
material effect
appellants and their co-defendant and therefore no viola-
tion
appellants’
Andrews
rights.
constitutional
263) (not
issue).
followed as
a different
See
Gray
479).
also
IAs error, find no merit I remaining enumerations reasons, would affirm For I respectfully convictions. these dissent.
Decided March A94A2345). Alembik, (case no. S. appellant Richard for A94A2346). (case Murrell, no. Mercedes T. Greenberg, Anita Slaton, Attorney, Carl P. District Lewis R. Attorneys, Wallace, District appellee. Assistant GARDNER v. BOATRIGHT. A94A2376. *6 (455 SE2d . Judge.
Ruffin, Gardner, Alma, Georgia, sued Max mayor of Roger Boatright, Gardner, Alma Times- Freddy editor of the publisher, and owner and certain let- Statesman, publication with the in connection for libel use of Boatright’s sister-in-law’s page concerning ters on the editorial Boatright’s involve- Boatright suggesting credit cards issued to application for Max Gardner’s “illegal practices.” granted We ment his motion for sum- appeal trial court’s denial of interlocutory mary judgment. grant his motion failing erred
Gardner contends the court there public official and summary Boatright is judgment because of actual malice. is no evidence the bur who will not bear summary judgment, a defendant
“On nonmoving affirmatively disprove the need not proof den of at trial affidavits, deposi case, by reference to the party’s may point but out there is an absence in the record that tions and other documents party’s nonmoving support any essential element evidence to pleadings, then rest on its nonmoving party The cannot case. issue. giving rise to a triable point specific evidence rather must (1) (440 Stange Enterprises, Cox [Cit.]” official, to the stan 503) (1994). Boatright subject public As Sullivan, 710, 11 SC York Co. v. U. S. 254 dard of New Times statements 686) (1964). is, that the he “must demonstrate LE2d That — is, with knowl ‘actual malice’ complained of were made with for their truth disregard they were false or with reckless edge that actual malice necessary to show falsity. disregard’ ‘reckless [Cits.] would have reasonably prudent man ‘is not measured whether There must publishing. investigated before published or would have the defendant permit the conclusion be sufficient evidence to publication.’ truth of doubts as to the fact entertained serious show actual must public in a defamation action . . . The official [Cit.] Sullivan, Co. clarity.’ New York Times ‘convincing malice with convincing clear and requirement of supra, U. S. at 285-286. The a mo ruling upon applicable equally evidence of actual malice omitted.) Stange, (Indention summary judgment. tion [Cits.]” supra at 732-733.