748 S.E.2d 376 | Ga. | 2013
Lead Opinion
This appeal is from the grant of a petition for a writ of certiorari. On January 6, 2011, a Cobb County grand jury returned an indictment against appellee Dwight Brown in Judge George Kreeger’s courtroom in the newly constructed Cobb County courthouse. Appellee filed a motion in abatement alleging the indictment was not returned in open court. Upon holding a hearing on the motion, the trial court agreed with appellee and quashed the indictment. The State appealed the trial court’s ruling and the Court of Appeals affirmed. State v. Brown, 315 Ga. App. 282 (726 SE2d 764) (2012). We granted the State’s petition for certiorari, posing the following question to the parties: “Did the Court of Appeals err in affirming the dismissal of Brown’s indictment on the ground that the indictment had not been returned in open court?” For reasons that follow, we affirm.
1. For over a century the rule in Georgia has been that a grand jury indictment must be returned “into open court.” See Sampson v. State, 124 Ga. 776 (53 SE 332) (1906). See also Zugar v. State, 194 Ga. 285, 288 (21 SE2d 647) (1942); Barlow v. State, 127 Ga. 58 (56 SE 131) (1906); Sellars v. State, 113 Ga. App. 510 (1) (149 SE2d 158) (1966); Clinkscales v. State, 102 Ga. App. 670, 673 (117 SE2d 229) (1960); Cadle v. State, 101 Ga. App. 175 (113 SE2d 180) (1960).
It is a fundamental part of our judicial system that the general public be permitted to witness court proceedings*494 sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.
Zugar, 194 Ga. at 289-290. The term “open court,” as far as returning the indictment is concerned, means that the indictment is returned in a “place where court [is] being held open to the public with the judge and the clerk present.” Id. at 289. See also Cadle, 101 Ga. App. at 180 (“the place of the reception of the indictment must be one where the court is being held open to the public”). A failure to return the indictment in open court is per se injurious to the defendant. Zugar, 194 Ga. at 291.
At the hearing on the motion in abatement, several witnesses testified that the new courthouse was not scheduled to be open to the public for the purpose of conducting the court’s business until January 10, 2011. A deputy clerk testified that she did not schedule any trials or other calendar matters to occur in the new courthouse prior to January 10. Judge Kreeger testified that, although his office had moved to the new courthouse two days after Christmas, during the week of January 6 he was conducting his courtroom proceedings in the old courthouse. On January 6, however, Judge Kreeger wanted the grand jury presentments to occur in his new courtroom so that the grand jury could see the new courthouse on its last day of convening. The county sheriff testified that his main concern about allowing people into the new courthouse prior to January 10 was safety and security, especially since construction was still ongoing in the new courthouse and equipment and tools were lying about the premises. As a result, the sheriff posted deputies in the breezeway connecting the old and new courthouses. The front entrance to the new courthouse on Haynes Street (Haynes Street entrance) was locked because there were no security personnel to post there as of January 6. Thus, on that date, anyone who wanted to access Judge Kreeger’s courtroom in the new courthouse had to go through security in the old courthouse and cross over the breezeway to where the deputies were posted at the entrance to the new courthouse. The sheriff stated he did not want anyone in the new courthouse without “proper badge and identification.” He confirmed that anyone wanting to enter the new courthouse was required by the sheriff’s office to state his/her business and anyone who could not articulate his/her business for being there would not be allowed into the new courthouse. The sheriff agreed that on January 6, the new courthouse was the only building in the judicial complex that could not be entered into without further inquiry after having gone through the regular security checkpoint in the old courthouse.
2. The State does not dispute the facts of the case, but rather requests the Court to overrule Zugar because the State contends the case has been abrogated by federal law such that the per se injurious rule announced in Zugar should be substituted with a harmless error test. In support of its argument that Zugar has been abrogated, the State cites United States v. Lennick, 18 F3d 814 (9th Cir. 1994) which abrogated Renigar v. United States, 172 F. 646 (4th Cir. 1909), a case this Court cited in Zugar. We are not persuaded by the State’s argument. The decision in Lennick, which was interpreting Rule 6 of the Federal Rules of Criminal Procedure, is not binding on Georgia’s courts. See Greer v. Thompson, 281 Ga. 419, 421 (637 SE2d 698) (2006); Tanner v. State, 242 Ga. 437 (1) (249 SE2d 238) (1978).
Judgment affirmed.
Likewise the State’s citation to Bank of Nova Scotia v. United States, 487 U. S. 250 (108 SCt 2369, 101 LE2d 228) (1988) is inapposite because that case did not challenge the indictment on the basis that it was not returned in open court.
Concurrence Opinion
concurring.
I concur fully in the Court’s opinion based on the following two understandings about our holding. First, it should be clear that the Court is not holding that any barrier or delay that members of the general public face in gaining access to a courtroom to observe the return of an indictment prevents that proceeding from being “open to the public.” Instead, consistent with our case law on the related, constitutional right of criminal defendants to a public trial, the question is whether the public was “denied access to the courtroom without justification,” meaning that the court “failed in its obligation to take reasonable measures to accommodate public attendance.” Purvis v. State, 288 Ga. 865, 867, 868 (708 SE2d 283) (2011) (emphasis added). Or as then-Judge Blackwell put this point in his opinion below:
Only when a citizen is unreasonably prevented by courthouse officials from attending a court proceeding — either because his admission to the courtroom is unreasonably refused altogether, unreasonably delayed for a time, or otherwise unreasonably hindered — can it be said that the proceeding is closed to the public.
State v. Brown, 315 Ga. App. 282, 288-289 (726 SE2d 764) (2012) (Blackwell, J., dissenting) (emphasis in original).
This understanding of our holding today is important to ensure that courts are not deterred from adopting and maintaining reasonable measures to provide security, at the exterior of courthouses and as needed for specific interior areas or courtrooms, and also to ensure that reasonable delays occasioned by such things as a broken elevator or a detour during construction are not deemed to have “closed” courts. Thus, we are not endorsing the trial court’s suggestion that “any delay whatsoever” may be unacceptable, see id. at 289 & n. 2; instead, we are concluding that the record, viewed as a whole, shows that the various restrictions placed on access to Judge Kreeger’s
Second, in light of the focus of the trial court and the Court of Appeals on the delay that one of Brown’s lawyers faced as he tried to get to Judge Kreeger’s new courtroom, it is important to recognize that, while evidence that a particular person was unreasonably prevented from accessing a courtroom is certainly relevant, see, e.g., Purvis, 288 Ga. at 865-866, the ultimate question is whether the court was “being held open to the public,” not to any particular individual. Zugar v. State, 194 Ga. 285, 290 (21 SE2d 647) (1942) (emphasis added). When, as in this case, the evidence indicates that there was ample available seating in the courtroom, if the evidence shows that someone who wanted to attend a proceeding there was unreasonably precluded from doing so, the State may be hard-pressed to explain how the court was open to the public. However, where space in the courtroom is limited in comparison to the number of persons wishing to enter, the court might accord preferential access to certain members of the public, like the victims of the alleged crime and the family of the defendant, see Purvis, 288 Ga. at 867; representatives of the news media, see R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 580 (292 SE2d 815) (1982); persons who are not disruptive, see id.; or simply those who first got in line to enter. This understanding of our holding today is important to deter challenges to court proceedings where the evidence demonstrates that “the general public [was] permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings,” Zugar, 194 Ga. at 289, even though a particular individual missed a proceeding because he failed to leave enough time to get through the security line, got confused by the signs in the courthouse, or received mistaken information about which courtroom the proceeding was in.
If the only evidence in this case related to the delay encountered by the hapless young lawyer who was sent to observe Brown’s indictment being returned, this would be a hard case. As the Court’s opinion recounts, however, and as also discussed in Judge Dillard’s concurring opinion below, the evidence relating to that lawyer meshes with substantial other evidence that the court proceeding at issue was not reasonably open to the general public. For that reason, and with the key understandings discussed above, I concur fully in the Court’s opinion.