Presley v. State
674 S.E.2d 909
Ga.
2009
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PRESLEY v. THE STATE

S08G1152

Supreme Court of Georgia

DECIDED MARCH 23, 2009

RECONSIDERATION DENIED APRIL 10, 2009

285 Ga. 270 | 674 SE2d 909

HINES, Justice.

(county employees had official immunity although they failed to follow official procedures to replace stop signs). Moreover, inspecting tires here was only one aspect of the entire inspection which included checking the proper functioning of brakes, lights, exhaust systems, windows, etc. It would be sеverely overreaching for courts to determine the applicability of official immunity by picking and choosing which portions of an entire inspection are discretionary and which portions are not. Accordingly, I would reverse the judgment in Case No. S08G1056 and reinstate the trial court‘s grant of summary judgment to Mr. Shepard.

I аm authorized to state that Justice Hines joins in this dissent.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Robert C. Edwards, Assistant Attorney General, for Department of Transportation.

James H. Potts II, Sidney L. Moore, Jr., Schenck & Associates, Hollis C. Cobb, for Heller.

Elizabeth B. Chandler, Jerry L. DeLoach, Laura Sauriol, for City of Atlanta.

Susan K. Moore, James F. Grubiak, amici curiae.

HINES, Justice.

The Court grаnted a writ of certiorari to the Court of Appeals in

, to review its ruling that the trial court did not err in ordering that spectators be excluded from the courtroom during jury voir dire in Eric Presley‘s trial for cocaine trafficking, which resulted in his conviction. Finding no infirmity in the trial court‘s directive, we affirm.

At Presley‘s trial, before the prospеctive jurors were brought into the courtroom for jury voir dire, the trial court inquired of a* courtroom observer: “Now, the gentleman in the black shirt, sir, do you have a case or . . . .” which elicited the response: “No, I‘m just here.” The trial court replied: “The reason I say that is for all the other observers in the courtroom, whеn I — when the jurors come up, they will be sitting on those rows, and you can‘t sit on the same rows with the jurors.”

After an unrecorded colloquy, the court said: “And, and the gentleman in the black shirt, you should not hang around on the sixth floor. He can go down to the, maybe the snackbar? . . . Is he a witness? Are you a witness?” The observer replied: “No, I‘m Mr. Presley‘s uncle.” The court said:

Okay. Well, you still can‘t sit out in the audience with the jurors. You know, most of the afternoon actually we‘re going to be picking a jury. And we may have a couple of pre-trial matters, so you‘re welcome to come in after we plete [sic] — complete selecting the jury this afternoоn. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who‘s got a case.

Presley‘s counsel objected to “the exclusion of the public from the courtroom.” The court responded:

I‘m not excusing the public from the cоurtroom. There just isn‘t space for them to sit in the audience. We have very small courtrooms, and the witnesses ‍​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌‌​‍and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial, and because of a tainted jury panel.

Presley‘s counsel then said: “Well, I‘m wondering, Your Honor, whether . . . some аccommodation could not be made for both, some of those members of the family and the jurors?” The court answered:

Well, the uncle can certainly come back in once the trial starts. There‘s no, really no need for the uncle to be present during jury selection. When the trial starts, he can certainly сome back into the courtroom. But he — we have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom.

Presley took exception to the court‘s ruling. After his conviction, Presley moved for a new trial on the general grounds, and amended that motion to include the ground that the trial court erred in “refusing to make an accommodation” so as to allow observers at all phases of his trial. At the hearing on the motion for new trial, Presley presented evidence regarding how many persons could be seated in the courtroom‘s four rows of seats; he asserted that 58 could be comfortably accommodated, and contended that additional seating could have been brought into the courtroom to accommodate observers and potential jurors.1

A criminal defendant has the right to a public trial under the Sixth and Fourteenth Amendments to the Constitution of the United States.

.2 This right extends to the proceedings of jury voir dire and selection.
. See also
. Under
, to exclude the public from a trial, there must be “an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.”
. Here, the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire. See
.3 And, the trial court based its decision to exclude observers on the fact that, given the arrangement of the courtroom, observers would be “intermingle[d]” with the potential jurors, and explained this concern to counsel. Nor was the trial court‘s order overbroad; the court made it clear that the exclusion of observers was only for the duration of jury voir dire.

Nonetheless, Presley asserts that the trial court‘s action was infirm because the trial court did not consider any alternatives to excluding all observers. However, no alternatives were suggested to the court; Presley‘s only reference regarding the subject was a nebulous request fоr “accommodation . . . for both, some of those members of the family and the jurors?” It has been noted that, although

declared that trial courts are to consider alternatives to closure, the United States Supreme Court did not provide clear guidance regarding whether a court must, sua sponte, advancе its own alternatives to it. See
(addressing closure during the period of time that undercover police witnesses were testifying). In that regard, we are persuaded by the reasoning of
, that, when a court is considering whether to close a portion of the proceedings, ‍​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌‌​‍and there is no discussion on the record regarding alternative actions,4 “it can be [inferred] that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest. [Cits.]”
. See also
. Accordingly, it is appropriate to “conclude that, where the factual record permits closure and the closure is not faciаlly overbroad, the party opposed to closing the proceeding must alert the court to any alternative procedures that allegedly would equally preserve the interest. [Cit.]”
.

Any other rule would place an impractical — if not impossible — burden on trial courts. . . . Even if the court were to hold a seрarate hearing on the issue, or itself consider and reject some alternatives to closing the proceeding, a defendant on appeal could likely always [suggest another alternative]. Under these circumstances, placing the onus wholly on trial courts would provide an incentive for defendаnts to remain silent. [Cit.]

.

Ruling that, in these circumstances, Presley was obliged to present the court with any alternatives that he wished the court to consider, recognizes the general appellate precept that one who objects to an action of the trial court must raise the issue at the time of the triаl court‘s action, so as to afford the court the opportunity to take any appropriate remedial action, or else forfeit review. See

. It also is consistent with the long-standing principle that

[t]he conduct of the trial of any case is necessarily controlled by the trial judge, who is vested with a widе discretion and in the exercise of which an appellate court should never interfere unless it is made to appear that wrong or oppression has resulted from its abuse.

. (Citations and punctuation omitted.) When neither the defendant nor the State directs the court‘s attention to alternatives, there is nо abuse of discretion in the court‘s failure to sua sponte advance its own alternatives.5

Judgment affirmed. All the Justices concur, except Sears, C. J., and Hunstein, P. J., who dissent.

SEARS, Chief Justice, dissenting.

A room that is so small that it cannot accommodate the public is a room that is too small to accommodate a constitutional criminаl trial.6 Here, however, it is clear from the pictures in the record that complete closure to the public of a critical portion of the trial — voir dire — was not required by space considerations, nor was the closure prompted by specific conduct by any of the spectators in the cоurtroom. Instead, it was the trial court‘s sole decision to conduct voir dire with 42 potential jurors in the courtroom at a time that created the overcrowding problem, a decision wholly within the trial court‘s control.

The majority acknowledges that the trial court did not consider any alternatives to closure. Thе trial court believed — erroneously — that the constitutional commands to keep criminal trials open to the public do not apply to voir dire.7 The failure to consider alternatives sua sponte — after announcing at the outset of trial that it planned to close voir dire to the public entirely — is a clear violation of the United States Supreme Court‘s decision in

and our own decision in
.8 The Supreme Court held in
that “the trial court must consider reasonable alternatives to closing the proceeding.”9 In
, we emphasized that Georgia trial judges have even less discretion in this ‍​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌‌​‍area than their federal counterparts do before stating the following:

While federal trial court judges are admonished to consider jury sequestration (or some other remedy) as an alternative to the closing of hearings to the publiс and the press, we now hold that a Georgia trial court judge shall use jury sequestration (or some other means) to exclude prejudicial matters from the jury‘s knowledge and consideration unless for some reason fully articulated in his findings of fact and conclusions of law jury sequestration (or another remedy) would not adequаtely protect the defendant‘s right to a fair trial.10

and
are controlling and mandate reversal here.

The majority excuses the trial court‘s failure to consider alternatives to closure on the ground that none were suggested to it. The majority thus shifts from the trial court to the defendant the burden of coming up with alternatives to closure as a prerequisite for securing a public trial. However, Presley‘s counsel had no advance notice that the trial court intended to close voir dire to the public, and thus it can hardly be said that the failure of Presley‘s counsel to come up with specific alternatives on the spot amounted to a knowing, voluntary, and intelligent waiver by Presley of his constitutional right to a public trial.11

Second and more importantly, the majority fails to explain why the requirement to consider alternatives to closure should be obviated when it is the trial court rather than a party who initiates it. The constitutional right to a public trial is designed primarily to police the conduсt of the judges who preside over them by exposing their actions to public scrutiny.12 Thus, it would seem even more important to require specific consideration, on the record, of alternatives when a trial court closes a portion of a trial to the public without any prompting by the parties. That is why we held in

that even where the prosecution and the defense both agree to closure, the trial court must enter a closure order with “written findings of fact fully articulating the alternatives to closure considered by the trial court and the reason or reasons why such alternative would not afford the movant an adequate remedy.”13 No such order was entered in this case.

Most troublingly, the majority‘s reasoning permits the closure of voir dire in every criminal case conducted in this courtroom whenever the trial judge decides, for whatever reason, that he or she would prefer to fill the courtroom with potential jurors rather than spectators. This case does not involve testimony by an undercover officer whose life would be threatened if the court were not closed during his or her testimony as the cases cited by the majority in support of its position did.14 It does not involve matters of national security. Rather, this case involves voir dire in a garden variety drug trafficking case no different than hundreds or perhaps even thousands of similar cases pending on the dockets of trial courts throughout this state. The majority today gives the trial courts in these cases the green light to exclude the public entirely from voir dire in all of them, contrary to the express commands of the Sixth Amendment, the Georgia Constitution,

, and
. I respectfully dissent.

I am authorized to state that Presiding Justice Hunstein joins in this dissent.

Gerard B. Kleinrock, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Gerald Mason, Assistant District Attorneys, for appellee.

Notes

1
No testimony was offered at the hearing on the motion for new trial regarding how many observers were in the courtroom at the time of the trial court‘s announcement regarding voir dire.
2
No persons who were excluded from the courtroom have sought relief in this сase. Compare
.
3
This Court has long recognized the trial court‘s interest in isolating jurors from public remarks. In
, it was held: “While every person accused of crime is entitled to a public trial, it is not necessary to its legality that a great multitude should be in attendance, and the presiding judge should not permit the bar or court-room to become so crowded as to impede the progress of the trial by rendering it difficult for the jurors to enter or leave the box, or by preventing the free movement of counsel and witnesses; moreover, the jury should not be in such close and constant contact with the audience as that remarks of bystandеrs as to the guilt or innocence of the accused, or other indications of public feeling for or against him, may reach their ears or come under their observation.”
.
4
 also observed that ”
 . . . does not hold that the trial court must explicitly consider alternatives on the record.”
.
5
Presley asserts that the “movant” wishing closure has certain burdens that were not met in this case. See
. As in
, neither party moved for closure — the State was silent during the relevant exchange — and we will not characterize the trial court‘s role as that of “movant” under
.
6
U. S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right to a . . . public trial . . . .“); Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a) (“In criminal cases, the dеfendant shall have a public . . . trial . . . .“).
7
 (holding Sixth Amendment right to a public trial extends to voir dire).
8
;
. In
, the Court held that closure of any portion of a criminal trial should be “rare” and stated the constitutional test as follows: “The presumption of openness may be overcome only by an overriding interest based on findings that closurе is essential to preserve higher values and is narrowly tailored to serve that interest. The interest is to be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered.”
9
 (emphasis supplied).
11
 (“[O]ur constitution commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.“) (emphasis supplied).
12
See, e.g.,
(“[T]he guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every ‍​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌‌​‍criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.“).
*
throughout the year. The taxi driver in this case was often cited for follow-up inspections. Furthermore, the trigger for inspection is only relevant if the municipal inspector fails to inspect when required to do so. See
. The case sub judice involves the аlleged ‍​‌‌‌‌‌​‌‌‌‌​​​​​​‌‌​‌‌‌‌‌‌‌‌‌​‌‌​​‌​​​​​‌‌​‌​‌‌​‍failure to properly inspect. See
.