Purvis v. StatePurvis v. State
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- Before:
- Hunstein
We granted certiorari to determine whether the Court of Appeals erred when it concluded that appellant Bobby Carroll Purvis’s right to a public trial was not violated by the holding of his trial in the county jail. See Purvis v. State, 301 Ga. App. 648 (3) (689 SE2d 53) (2009). Because appellant produced unrebutted evidence that jail authorities excluded from the jail courtroom appellant’s brother, a member of the public who wanted to attend appellant’s trial, in violation of his rights under the Sixth Amendment of the United States Constitution and Art. I, Sec. I, Par. XI (a) of the Georgia Constitution of 1983, we reverse.
1. Appellant was indicted in Berrien County on a charge of child molestation involving a family member. The jury for appellant’s trial was selected at the Berrien County courthouse. However, the trial itself was held on October 3, 2006 in a courtroom
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462, 471, fn. 5 (291 SE2d 497) (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const, of Ga. 1983, Art. I, Sec. I, Par. XI (a).
Georgia law . .. regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law. [Cits.] . . . [0]ur state constitution point-blankly states that criminal trials shall be public. [Cit.] .. . We see no friction between these state and federal constitutional provisions, properly interpreted, since the objectives of both are identical: access to judicial hearings for the public and fair trials for criminal defendants.
(Footnote omitted; emphasis in original.) R. W. Page Corp. v. Lump- kin, 249 Ga. 576, 578-579 (3) (292 SE2d 815) (1982). 4
We need not here resolve whether the holding of a criminal trial within the confines of a jail or prison, in and of itself, deprives a criminal defendant of the right to a public trial. But see, e.g.,
Washington v. Jaime,
233 P3d 554 (Wa. 2010) (jail house setting for trial inherently prejudicial);
Bright v. Alaska,
875 P2d 100 (Alaska App. 1994) (absent showing of compelling reasons, criminal trial held in prison violated federal
In giving content to the constitutional and statutory commands that an accused be given a public trial,.... without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.
(Footnote omitted.) In re Oliver, 333 U. S. 257, 271-272 (68 SC 499, 92 LE 682) (1948). See also Vidal v. Williams, 31 F3d 67, 69 (2d Cir. 1994) (“the Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused”); Wisconsin v. Ndina, 761 NW2d 612 (Wisc. 2009) (exclusion of family members implicates Sixth Amendment right to a public trial). The closure of the courtroom to appellant’s brother was neither brief nor trivial, as appellant’s adult brother was kept out of the courtroom during the entire trial, which involved criminal charges brought against appellant in regard to a family member. Compare United States v. Perry, 479 F3d 885 (II) (A) (D.C. Cir. 2007) (exclusion of defendant’s eight-year-old son did not implicate Sixth Amendment right to public trial where trial on charges of unlawfully accessing a computer remained open to defendant’s wife and general public); Carson v. Fischer, 421 F3d 83, 93 (2nd Cir. 2005) (no Sixth Amendment violation from exclusion during defendant’s trial on narcotics charges of defendant’s ex-mother-in-law during span of a single witness’s testimony, when other family members and general public were present). Accordingly, we reject the State’s argument that jail officials’ deliberate exclusion of appellant’s brother from the courtroom during the entire trial on charges involving a family member was mitigated in any manner by the fact that jail officials selectively allowed other members of the public to attend the trial.
We do not find it significant under the facts in this case that the trial court itself did not specifically order the exclusion of appellant’s brother from the courtroom. Compare Presley v. Georgia, 558 U. S. _ (130 SC 721, 722, 175 LE2d 675) (2010) (trial court ordered courtroom closed during voir dire, thus excluding defendant’s uncle, who was the “lone courtroom observer”); Reid v. State, 286 Ga. 484 (3) (c) (690 SE2d 177) (2010) (trial court ordered courtroom temporarily closed during testimony of two witnesses). While the trial court may not have deliberately intended that members of the public be prevented from attending the trial, it was the trial court that deliberately decided to hold appellant’s trial in the county jail courtroom. By doing so, the trial court totally relinquished to jail officials the authority to control the public’s access to the courtroom. As the United States Supreme Court has stressed, “[tjrial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials.” Presley, supra, 130 SC at 725. We hold that the trial court, by deciding to hold appellant’s trial in a facility where the public’s access was governed exclusively by the jail authorities, failed in its obligation to take reasonable measures to accommodate public attendance at appellant’s trial. Compare Harper v. Mississippi, 887 S2d 817 (Miss. App. 2004) (before holding trial in prison courtroom of two defendants charged with crimes committed after escaping the prison, trial court held pre-trial hearing where factual record was created to support necessity of holding trial in prison courtroom; trial court then made detailed provisions for those individuals the defendants wanted to attend the trial and reviewed arrangements made by prison authorities to accommodate public attendance at trial). 5
Accordingly, we reverse the Court of Appeals with direction that it remand this case to the trial court for a new and public trial.
2. The Court of Appeals did not address any Sixth Amendment concerns in rejecting appellant’s argument that his constitutional right to a public trial was violated because his trial was conducted in the county jail courtroom rather than the county courtroom. Instead, it relied exclusively upon the discussion of
As to those counties that come within its population limits,
if for any cause it shall or may be impractical to hold any session or sitting of any superior or state court at the courthouse or other place provided by law therefor . . . , it shall be lawful to hold court and any session or sitting thereof at such place or places as the governing authority of the county in and for which the court is to be held may from time to time, by appropriate resolution, provide for such purpose, provided that no session or sitting of any superior court or state court may be held under this subsection at any place that is not open to and accessible by the public; provided, further, that no criminal jury trial shall he conducted in such alternate or additional facility without the consent of the accused.
(Emphasis supplied.)
As reflected in defense counsel’s testimony and appellant’s objections made on motion for new trial, no consent was obtained from appellant for the conducting of his criminal jury trial in the courtroom located inside the county jail, i.e., an alternate or additional facility under
Judgment reversed.
All the Justices concur.
Notes
Although appellant’s brother indicated that he was not the only person prevented from entering the courtroom, those other persons did not testify at the hearing on the motion for new trial.
Compare McKibben v. State, 187 Ga. 651, 652 (3) (2 SE2d 101) (1939) (defendant’s claim that his right to a public trial was violated by the giving of the jury instructions in the jury room was rejected because “[i]t was not made to appear that. . . such room was not fully open to all of the public who might have desired to be present, the same as the court-room would have been”); Craven v. State, 292 Ga. App. 592 (1) (a) (664 SE2d 921) (2008) (defendant’s claim that a bailiff barred family members from attending voir dire directly rebutted by the three court bailiffs’ testimony).
Although the State claims that the brother was excluded because he was listed as a defense witness in the case and the rule of sequestration had been invoked, our review of the record establishes that there is nothing therein to support this claim. We note that appellant’s notice of appeal directed the clerk of the superior court to “omit nothing from the record on appeal”; the record before us has been certified to be a “true and complete copy of the record” in this case, see
Although R.W. Page Corp., supra, was based upon the right to a public trial in Const, of Ga. 1976, Art. I, Sec. I, Par. XI, we apply the same construction to the virtually identical language in Const, of Ga. 1983, Art. I, Sec. I, Par. XI (a) (“[i]n criminal cases, the defendant shall have a public . . . trial by an impartial jury” (emphasis supplied)).
Nor does it affect our holding that appellant made no objection at trial. Because the record establishes that appellant was tried and convicted in one day, he could not have known that his brother, and possibly other members of the public, had been prevented from entering the jail courtroom during the trial so as to object to their exclusion. Compare Reid v. State, supra, 286 Ga. at 486 (3) (c) (defendant aware of trial court’s temporary closure of the courtroom); Gomez v. State, 305 Ga. App. 204 (2) (699 SE2d 395) (2010) (defendant aware of public’s exclusion when trial court ordered the courtroom cleared). Appellant thus raised the issue at the proper time in his motion for new trial. Moreover, as the United States Supreme Court stated in Presley v. Georgia, supra, 130 SC at 724-725, “[t]he public has a right to be present whether or not any party has asserted the right.”
If for any cause it shall or may be impracticable to hold any session or sitting of any superior or state court at the courthouse or other place provided by law therefor, it shall he lawful to hold court and any session or sitting thereof at such place as the proper authorities of the county in and for which the court is to be held may from time to time provide for such purpose, provided that . . . no session or sitting of any superior court may be held under this subsection at any place other than the county site of the county of such court.
See Ga. L. 1994, p. 1052, § 2.
Ga. L. 1998, p. 1159, § 2 amended
Because
Because this case will be remanded for a new trial, we need not address the second question for which we granted certiorari, namely whether appellant’s trial counsel was ineffective for failing to notice that the victim recanted at trial.