State v. Brown

BOGGS, Judge,

dissenting.

Because this record shows that the indictment was returned in open court, I respectfully dissent.

The majority’s holding on the subject of public judicial proceedings is misplaced under the facts presented in this case. Although access to the courthouse was limited and required the assistance of court personnel, it was not prohibited. Other members of the public and members of the media were present in the courtroom, which demonstrates beyond dispute that the courtroom was indeed open to the public. A partner in the firm representing Brown instructed Tribble, an associate of the firm representing Brown who explained that he did “mostly civil practice,” to attend the reading of the indictment. Both Tribble and the partner were aware of the limited access at the courthouse that day, yet Tribble left his law office at 3:25 p.m., only 35 minutes before he believed that the indictment would be returned. Tribble testified that the courtroom was unlocked, no one stopped him at the door to the courtroom, and other people were present in the courtroom.

As explained in Zugar v. State, 194 Ga. 285 ( 21 SE2d 647 ) (1942), 21 “[i]t is a fundamental 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.” Id. at 289 . The proceedings here were not “secret or star-chamber court proceedings.” The face of the indictment signed by the jury foreperson and bailiff shows that it was returned in open court, and the defendant has come forth with no evidence showing otherwise. The majority’s holding here will result in challenges to the open-court rule based upon claims by lawyers or members of the public who arrive at the courthouse minutes before *291 they believe an indictment is to be returned, only to be briefly detained by courthouse security or a crowded elevator.

Decided March 29, 2012

Patrick H. Head, District Attorney, John C. Butters, Assistant District Attorney, Bondurant, Mixson & Elmore, John E. Floyd, for appellant.

Gillen, Withers & Lake, Craig A. Gillen, The Barnes Law Group, Roy E. Barnes, John F. Salter, Jr., for appellee.

Both of the cases cited by the majority are inapposite. In Cadle v. State, 101 Ga. App. 175 ( 113 SE2d 180 ) (1960), the judge received the indictment from the bailiff in the presence of the clerk in a room that served as the office of the presiding judge. Id. at 180 (1). Although the door was open between that room and an outer room occupied by members of the public and one of the attorneys for the defendant, the court held that “the evidence relied upon to show that the court was at that time and place being held open to the public is, to say the least, doubtful and uncertain.” (Emphasis in original.) Id. In Zugar, supra, the bailiff delivered an indictment to the clerk of court in the absence of the judge. Id. at 287-288 . Neither of these circumstances is present here.

We note that Zugar relied in part on Renigar v. United States, 172 F. 646 (4th Cir. 1909), which was later abrogated by the United States Supreme Court as stated in Phifer v. United States, 2008 U. S. Dist. LEXIS 97281 (II) (3) (W.D. N. C. 2008) (errors in grand jury presentment process subject to harmless error analysis).