State v. BrownState v. Brown
Lead Opinion
This аppeal 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 allеging 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,
1. For over a century the rule in Georgia has been that a grand jury indictment
It is a fundamеntal part of our judicial system that the general public be permitted to witness court proceedings 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,
At the hearing on the motion in abatement, several witnesses testified that the new courthouse was not scheduled to be open to the рublic 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 courthousе 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 cоnvening. 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 оf 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.
Four other witnessеs testified about their experiences in accessing the new courthouse during the week of January 6. Attorney Thomas Jennings Browning testified that he went to the judicial complex on January 3 to pick up an order from one of the judges. When he approached the deputies pоsted at the breezeway entrance to the new courthouse, he was not allowed to go inside. He came back a day or two later and was informed that he would have to contact the court administrator in order to gain entry into the new courthouse. Attorney Cameron Tribble, who was one of appellee’s attorneys, testified he went to the new courthouse on January 6 specifically to see the return of the indictment against appellee. Attorney Tribble went to the Haynes Street entrance, but the door was locked and he saw signs that said thе new courthouse was not yet opened. Attorney Tribble then contacted his boss, Attorney Roy Barnes, who instructed Attorney Tribble to contact the court administrator for assistance. When Attorney Tribble met the court administrator at the atrium in the old courthouse, there was a reporter who was also trying to gain access to the new courthouse. The court administrator escorted
Under the factual circumstances of this case, we cannot say that on January 6, 2011, appellee’s indictment was returned in a place that was open to the public. All court personnel and the sheriff testified that the new courthouse was not scheduled to be opened for the court’s regular business until January 10. Judge Kreeger was not conducting his proceedings in the new courthouse that week, but only had the grand jury presentments therein because he wanted to show the grand jury the new courthouse on their last day. The рersons who were able to access the new courthouse on January 6 were attorneys and members of the media who had a relationship with court personnel or were knowledgeable enough to obtain an escort from the clerk’s office or the district attorney’s оffice. On January 6, the average member of the public who simply wanted to observe the return of the indictment in Judge Kreeger’s new courtroom would not have had such relationships or knowledge. Rather, a member of the public would have found the Haynes Street entrance lockеd with no instruction on how to gain entry and, if a member of the public was able to make his/her way to the breezeway entrance via the old courthouse, he or she likely would have been turned away by the deputies posted there much like Attorney Browning and Attorney Salter. Thus, as the trial cоurt and the Court of Appeals correctly concluded, the indictment was not returned in a place open to the general public as required by Zugar and its progeny.
2. The State does not dispute the facts of the case, but rather requests the Court to overrule Zugar because the State contеnds 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,
Judgment affirmed.
Notes
Likewise the State’s citation to Bank of Nova Scotia v. United States,
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,
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,
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 сourtrooms, 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 unаcceptable, 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 courtroom in the new and not-yet-officially-opened courthouse at the time the indictment аgainst Brown was returned unreasonably hindered the general public from being able to attend that proceeding. See id. at 285-288 (Dillard, J., concurring).
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 tо 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,
If the only evidence in this case related to the delay encountered by the hapless yоung 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 proсeeding 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.