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July 16, 2014
In the Court of Appeals of Georgia
A14A0610. FREEMAN v. THE STATE. DO-022 C
DOYLE , Presiding Judge.
Following a jury trial, Leonard Freeman was convicted of burglary1 and
attempted malice murder.2 He now appeals from the denial of his motion for new trial,
assigning as error (1) the admission of statements he made during a police interview,
(2) the admission of hearsay testimony of an emergency medical worker who attended
to the victim, (3) the denial of his motion for a mistrial due to lack of access to real-
time court reporting, (4) the closure of the courtroom during sentencing, (5) failure
to sentence him as a first offender, and (6) ineffective assistance of counsel. For the
reasons that follow, we affirm.
1
OCGA § 16-7-1 (b).
2
OCGA §§ 16-4-1; 16-5-1 (a).
Construed in favor of the verdict,3 the evidence shows that a police officer
responded to a nighttime 911 call about a burglary in progress and encountered
Freeman, whom the officer knew, walking near the victim’s address. Freeman, who
lived across the street, denied any knowledge of the burglary, so the officer
investigated the house for damage and, upon shining his flashlight in a bedroom
window, saw Jan Nelson, Freeman’s mother-in-law, on the floor covered in blood.
The officer radioed for emergency medical services (“EMS”), and a responding
medical technician, Russell Fortenberry, spoke to Nelson about her injuries. Nelson
told Fortenberry that she had awoken to go to the bathroom and found someone in her
house who tried to smother her by putting a bag over her head, and she had somehow
hit her head.
An investigator arrived at the scene and learned of a small hammer and axe
handle found near a pool of blood in a bedroom of Nelson’s house. The investigator
visited Freeman at his home, and Freeman told the investigator he had been asleep in
his house at 3:00 a.m. when his phone rang, and upon seeing Nelson’s name on his
caller i.d., he went to go check on her. When later visited by an investigator at
Nelson’s hospital room, Freeman later claimed that the axe handle belonged to him,
3
See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).
2
but denied ownership of the hammer. During another subsequent conversation with
police outside his home, Freeman told an investigator that earlier he had misled police
about being asleep, and he had actually been outside his house drinking liquor.
Freeman later gave a recorded interview at the police department, and
following that, he agreed to undergo a polygraph test by a Georgia Bureau of
Investigation interviewer. Before beginning the polygraph examination, Freeman met
for a pre-interview session, during which he was administered a Miranda4 waiver,
which he signed. During the pre-interview, Freeman told the GBI interviewer that he
put a bag over Nelson’s head and hit her twice with a hammer. He explained that he
had only “roughed [her] up” for the purpose of scaring her so that she would not
continue to live alone. As a result of those statements, the polygraph test was never
administered, and the GBI agent immediately advised the police investigator of
Freeman’s statements. Freeman, the GBI agent, and the police investigator went to
a separate interview room where Freeman again told the investigator that he had
placed a bag over Nelson’s head and hit her in the head with a hammer. After that
interview, Freeman was formally arrested.
4
Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).
3
Freeman was charged with aggravated assault, burglary, and attempted malice
murder. Following a trial, the jury found him guilty on all three counts, and the trial
court sentenced him on the burglary and attempted murder charges, merging the
aggravated assault charge into the attempted murder charge. Freeman moved for a
new trial, which motion was denied, giving rise to this appeal.
1. Freeman contends that the trial court erred by admitting statements he made
to the police investigator immediately after his confession during the GBI pre-
interview for the polygraph test. Specifically, Freeman argues that he should have
been given an additional Miranda warning for purposes of the statement he made to
the police investigator. We disagree.
The trial court addressed Freeman’s challenge to the statement during a
Jackson v. Denno5 hearing. “Unless clearly erroneous, a trial court’s findings as to
factual determinations and credibility relating to the admissibility of a defendant’s
statement at a Jackson v. Denno hearing will be upheld on appeal.”6 The record from
the hearing shows that Freeman was properly advised of his Miranda rights before
5
378 U. S. 368 (84 SCt 1774) (12 LE2d 908) (1964).
6
(Punctuation omitted.) Boynton v. State, 277 Ga. 130, 131 (3) (587 SE2d 3)
(2003).
4
the pre-interview, there was no significant time gap between the two interviews, and
the second interview (during which the initial interviewer was present) was of a
similarly non-coercive nature, even if conducted in a different interview room. Thus,
“the lack of a Miranda warning after the break is of no consequence [because
Freeman] was informed of and waived his Miranda rights before the first interview
and the second interview was part of a continuous series of interviews.” 7 “Thus, it
cannot be said that the trial court erred in ruling that the [subsequent] statement was
admissible.” 8
2. Freeman next argues that the trial court erred by admitting hearsay testimony
from the EMS worker who treated Nelson at the scene and told the jury what she said
about the attack. The record shows that the responding officer radioed for EMS
immediately upon discovering “Nelson on the floor at the end of her bed[,] . . .
covered in blood.” The challenged testimony came from the EMS worker who was
7
(Punctuation omitted.) Mangrum v. State, 285 Ga. 676, 678-679 (3) (681
SE2d 130) (2009) (addressing a two-hour break between interviews), citing Williams
v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979) (“no duty to repeat the
Miranda warnings given the day before [because] the interviews were part of a
continuing interrogation”); Watson v. State, 227 Ga. 698, 700 (1) (182 SE2d 446)
(1971) (further warning not necessary after seven-hour lapse between statements).
8
Boynton, 277 Ga. at 131 (3).
5
dispatched to the scene. He described Nelson as having a laceration to the top of her
head with some “obvious bleeding” that was under control by the time he arrived. As
he evaluated Nelson, the EMS worker “spoke with the patient just to do my initial
assessment . . . like I would do with every patient to find out . . . how she got her
injury and then . . . what happened during and so forth there with the injury[. S]he
was alert at the time and was able to answer all of our questions.” Over Freeman’s
objection, the EMS worker stated that when, as part of his treatment routine, he asked
Nelson how she was injured, she responded that “she had gotten up to go to the
bathroom and found someone in the house and they [sat on her,] had tried to smother
her, and put a bag over her head, and she was unaware of exactly how she got the
laceration to the top of the head.”
Freeman objected to the testimony on the grounds that it was hearsay and a
violation of his constitutional right to confrontation under Crawford v. Washington.9
But the EMS worker
was responsible for emergency medical diagnosis and treatment, to
which the cause of the injury was relevant. Statements made for
purposes of medical diagnosis or treatment and describing the inception
or general character of the cause or external source thereof insofar as
9
541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).
6
reasonably pertinent to diagnosis or treatment have long been admissible
under [statutory hearsay exceptions] and continue to be admissible even
after Crawford. . . . [Nelson’s] statement to the paramedic was made
during his initial examination of her to ascertain the scope, diagnosis,
and treatment of her injuries, and does not fall within any of the classes
of testimonial statements described in Crawford.10
Therefore, under the circumstances of Nelson’s statements to the EMS worker, we
discern no error here.
3. Freeman next argues that the trial court erred by denying his motion for a
mistrial made by his trial counsel upon learning that the State had access to real-time
court reporting via an Internet feed on a laptop at counsel’s table. The feed displayed
the text of the transcript as entered by the court reporter, and until 11:30 a.m. on the
third day of the four-day trial, Freeman’s counsel was unaware that it had been
available to the State and the court during trial.
Freeman’s counsel objected, and during a bench conference it was established
that he was aware that the system existed, but had not requested it (nor was he aware
10
Hester v. State, 283 Ga. 367, 371-372 (4) (659 SE2d 600) (2008), quoting
Thomas v. State, 288 Ga. App. 602, 608 (3) (654 SE2d 682) (2007) (no error in
admitting hearsay statements “made to a nurse and doctor while they were examining
the victim to ascertain the scope, diagnosis, and treatment of his injuries.”).
7
that it was readily available in that case).11 The State explained that it had referred to
the system only once to make a list of quickly-recited connections on the polygraph
apparatus that was not ultimately used in the case. No transcripts had been printed out
for the State’s use at any time. The trial court informed Freeman’s counsel how to
access the service over the local wireless network, and the trial continued, over
Freeman’s request for a mistrial.
“The trial court exercises wide discretion in controlling and regulating the
business of the court, and appellate courts should never interfere with the exercise of
this discretion unless it is plainly apparent that wrong has resulted from the abuse.”12
It is apparent from the trial transcript that the service was available to Freeman’s trial
counsel had he requested access to it, the State had not concealed its use of it, and the
trial court was unaware that the State was using it and Freeman was not. Further,
Freeman’s counsel was able to see and hear everything in the courtroom, he was
immediately given access upon request, and he did not point to any specific harm that
11
Counsel’s prior experience with the real-time system involved a deaf client
for whom special arrangements had been made.
12
Williams v. State, 205 Ga. App. 445, 447 (3) (422 SE2d 309) (1992).
8
occurred or any particular use he would have made of the real time transcript up to
that point. Under these circumstances, we discern no reversible error.13
4. Freeman also asserts as error the trial court’s closure of the courtroom for
one witness’s testimony during his sentencing hearing.14 At the hearing, Freeman’s
counsel proffered that, as part of his mitigation defense, he would elicit testimony
from police that Freeman would offer substantial cooperation with ongoing criminal
investigations. The State did not want to impede open investigations by revealing
information about those investigations, so the State requested that the trial court
exclude the public during those witnesses’ testimony. Freeman’s counsel did not
object because he believed it would benefit his client to facilitate the law enforcement
testimony showing his client’s cooperation.
Freeman now asserts that the trial court erred by closing the courtroom, but
because Freeman agreed to the closure, “the issue of closure may only be raised in the
13
See Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003)
(harm as well as error must be shown).
14
The trial court initially approved of courtroom closure for three witnesses,
but during the hearing the closure was limited to only one witness.
9
context of an ineffective assistance of counsel claim.”15 This is because “[a] defendant
will not be allowed to induce an asserted error, sit silently hoping for acquittal, and
obtain a new trial when that tactic fails. Induced error is impermissible and furnishes
no ground for reversal.” 16 “[T]o hold otherwise would encourage defense counsel to
manipulate the justice system by intentionally failing to object [to closure] in order
to ensure an automatic reversal on appeal.”17
15
State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (punctuation
omitted) (quoting Reid v. State, 286 Ga. 484, 487 (3) (c) (690 SE2d 177) (2010).
Freeman relies on R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982),
for the proposition that motions to close the courtroom must be in writing and meet
other procedural safeguards. But that case relied on Code Ann. § 24-3363 of the 1933
Code which is no longer in effect, and it addressed a trial court ruling on a request by
news reporters to remain present in the courtroom during a suppression hearing. See
id. at 580 (5). The reversal in R.W. Page Corp. was therefore limited to the trial
court’s ruling on the reporters’ requests to be present, and it did not address the
underlying criminal conviction of the defendant.
16
(Punctuation omitted.) Anthony v. State, 275 Ga. App. 274, 278-279 (5) (620
SE2d 491) (2005).
17
Reid, 286 Ga. at 488 (3) (c). See also Grant v. State, 295 Ga. 126, 128 (3)
(757 SE2d 831) (2014) (“Appellant’s claim that the trial court erred by closing the
courtroom to inquire whether the State had made a deal with a witness has not been
preserved for appeal because no objection to the closure was made at trial.”); Benson
v. State, 294 Ga. 618 (2) (754 SE2d 23) (2014) (Appellant’s family members were
improperly excluded from voir dire but because “[a]ppellant . . . did not object to the
closure at trial[, he was] procedurally barred from raising the issue on appeal.”).
10
Despite this waiver, the dissent argues that the courtroom’s closure requires
reversal, emphasizing the importance of a public trial. But this precise concern was
addressed in State v. Abernathy, in which the Supreme Court of Georgia explained
that (1) “the right to public trial may give way in certain cases to other rights or
interests, such as the defendant’s right to a fair trial,”18 and (2) the defendant’s failure
to object waived appellate consideration of the issue outside of a claim for ineffective
assistance of counsel, which is not presented in this enumeration.19
Nevertheless, in the present case, it is clear that the trial court held a hearing
on the record in which it considered the least intrusive way to protect Freeman’s
interests in presenting mitigation evidence without hindering the State’s ongoing
criminal investigation.20 The trial court carefully considered alternatives to the
temporary closure as well as ways to limit closure to only certain witnesses’
testimony.21 The court made explicit findings on the record and identified the
18
(Punctuation omitted.) 289 Ga. at 611 (5).
19
See id. Freeman’s ineffective assistance claim is addressed in Division 6 (c).
20
See, e.g., Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721; 175 LE2d
675) (2010).
21
See id.
11
overriding nature of Freeman’s due process interest and the State’s interest in
protecting sensitive information involved in the criminal investigation.22 The parties
proffered specific facts supporting the trial court’s findings and exercise of discretion.
The closure was narrowly tailored to a single witness, and the courtroom was
promptly reopened after the relevant evidence was presented; there is no indication
that the full transcript of the sentencing was ever withheld from anyone seeking it.
Under these circumstances, and in light of Freeman’s waiver, we discern no basis for
reversal on the enumerated ground.
5. Freeman also challenges the trial court’s failure to sentence him as a first
offender under OCGA § 42-8-60 et seq. “[W]hether or not to sentence a defendant
under the first offender statute lies entirely within the discretion of the trial court.”23
Absent some erroneous belief on the part of the trial court that the law does not
permit first offender treatment, we presume the trial court “acted properly in imposing
the sentence.”24
22
See id.
23
(Citation omitted.) Tew v. State, 320 Ga. App. 127 (739 SE2d 423) (2013).
24
(Punctuation omitted.) Id. at 128.
12
Here, although Freeman did not request first offender treatment, it is apparent
from the record that the trial court knew of Freeman’s lack of criminal convictions
but nevertheless sentenced him to 30 years (to serve ten) and 20 years consecutive on
probation. The trial court’s sentencing shows that it found the nature of the crime to
be severe, and the court gave no indication that it felt constrained to ignore the
potential for first-offender sentencing. Further, we note that Freeman was found
guilty of attempting to commit malice murder, a serious violent felony that, if
completed, is ineligible for first offender treatment.25 Pretermitting whether an
unsuccessful murder should be treated differently than a successful one for first
offender purposes, the conduct here was of a sufficiently serious nature that we
discern no abuse of discretion on the part of the trial court for failing to sentence
Freeman as a first offender.
6. Freeman argues that his trial counsel was ineffective in several ways. Under
Strickland v. Washington,26 to succeed on an ineffective assistance claim, a criminal
defendant must demonstrate both that his trial counsel’s performance was deficient
25
See OCGA §§ 42-8-60 (d) (1) (first offender statute); 17-10-6.1 (a) (1)
(listing serious violent felonies); 16-5-1 (a) (defining malice murder).
26
466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).
13
and that there is a reasonable probability that the trial result would have been
different if not for the deficient performance.27 “There is a strong presumption that
the performance of trial counsel falls within the wide range of reasonable professional
assistance. The reasonableness of the conduct is viewed at the time of trial and under
the circumstances of the case.”28 If an appellant fails to meet his burden of proving
either prong of the Strickland test, the reviewing court need not examine the other
prong.29 In reviewing the trial court’s decision, “[w]e accept the trial court’s factual
findings and credibility determinations unless clearly erroneous, but we
independently apply the legal principles to the facts.”30
(a) Failure to present closing argument at the Jackson-Denno hearing.
Freeman points to his trial counsel’s decision, at the conclusion of the testimony
adduced at the Jackson-Denno hearing, to rest on the evidence “in this specific
27
See id. at 687-688, 694 (III) (A)-(B).
28
(Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6)
(596 SE2d 597) (2004).
29
See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507
(3) (591 SE2d 782) (2004).
30
(Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313)
(2003).
14
situation,” and not present argument. The State elected to do the same. The transcript
shows that Freeman’s trial counsel had vigorously cross-examined the State’s witness
with probative and leading questions, revealing inconsistencies and challenging their
answers. Trial counsel’s questioning laid a clear foundation to support his theory that
Freeman’s statements were the product of improper interrogation, and he was not
sufficiently Mirandized. Trial counsel’s approach is in line with the common and
reasonable tactic to perfect the record and not use further court time to make an
argument that has become obvious through counsel’s questioning. As such, in the
absence of any showing that counsel’s tactic was unreasonable or inadvertent,
waiving argument at the hearing in this case affords no basis for reversal. “Trial
tactics and strategy, no matter how mistaken in hindsight, are almost never adequate
grounds for finding trial counsel ineffective unless they are so patently unreasonable
that no competent attorney would have chosen them.”31
(b) Failure to object to certain statements. Freeman argues that his trial counsel
should have objected on hearsay grounds to portions of a recorded police interview
as well as testimony by an officer regarding Nelson’s account of the shirt color (either
31
(Punctuation omitted.) Welch v. State, 318 Ga. App. 202, 207 (2) (733 SE2d
482) (2012).
15
orange or yellow) of her assailant. With respect to the recorded interview, trial
counsel had unsuccessfully attempted to exclude the interview during the Jackson v.
Denno hearing. In light of that ruling, counsel elected to have the entire interview
admitted rather than redact it, as part of a trial strategy to point out inconsistencies as
to the assailant’s shirt color. Trial counsel further highlighted the inconsistencies in
his closing argument. With respect to statements by the officer regarding shirt color,
Freeman does not identify the particular objectionable testimony, but these statements
would have been subject to the same trial strategy employed by trial counsel.
Furthermore, alleged discrepancies about the shirt color of the assailant were
overwhelmed by the other evidence of guilt. After being given a Miranda warning,
Freeman twice volunteered to investigators that he put a bag over Nelson’s head and
hit her in the head with a hammer. Based on the record before us, we discern no
reversible error predicated on the effectiveness of trial counsel with respect to the
challenged testimony.32
32
See Rice v. State, 292 Ga. 191, 210-211 (9) (f) (733 SE2d 755) (2012)
(holding that, even assuming that trial counsel performed deficiently by failing to
make an objection, the defendant’s ineffective assistance claim failed because there
was no prejudice due, in part, to the overwhelming evidence of his guilt). See also
Boyd v. State, 286 Ga. 166, 168 (2) (686 SE2d 109) (2009) (overwhelming evidence
can render harmless a Crawford violation arising from the admission of hearsay).
16
(c) Consenting to close the courtroom during sentencing. Freeman also argues
that his trial counsel performed deficiently by consenting to closing the courtroom
during sentencing. But, as noted in Division 4, this decision was a strategic one
designed to allow mitigation evidence during sentencing. Prior to sentencing, trial
counsel stated that he believed that law enforcement witnesses would be more
forthcoming if the courtroom were closed. In light of this reasonable strategic
decision, and in light of any showing of harm, Freeman has failed to meet his burden
under Strickland.33
(d) Failure to request first offender sentencing. Finally, Freeman argues that
his trial counsel should have requested sentencing under the first offender statute. But
the record shows no inclination by the trial court to allow first offender status in light
of the nature of the offenses Freeman committed. Nor was there evidence that the trial
court was constrained to impose the sentence Freeman received. To the contrary, the
33
See Muse v. State, 293 Ga. 647, 651 (2) (a) (748 SE2d 904) (2013)
(Addressing a temporary courtroom closure during voir dire on jury members’
experience with sensitive sexual topics, “[w]e cannot say that it was unreasonable for
the lawyer to think that closing the courtroom might facilitate his efforts to [obtain
a favorable jury composition], and Appellant has failed, therefore, to overcome the
strong presumption that the failure of her lawyer to object to the closing was a
reasonable trial strategy.”); Abernathy, 289 Ga. at 611 (5) (“Given that the [closure]
was designed with the express purpose of maximizing the odds of . . . a fair trial, [the
defendant] cannot make” the required showing of harm.).
17
trial court noted Freeman’s lack of a criminal record and that it could have sentenced
Freeman from one to thirty years for the attempted murder count. Nevertheless, after
recounting on the record Freeman’s use of a hammer, Nelson’s fractured scull, staples
“all up her head,” the pool of blood, and Nelson’s fear that she was going to be
suffocated, the trial court imposed a sentence of 30 years with 10 to serve.
Pursuant to Strickland, Freeman must offer more than speculation that the trial
court would have sentenced him as a first offender.34 In light of the record before us,
Freeman has not meet this burden.35
Judgment affirmed. Andrews, P. J., Dillard and McMillian, JJ., concur.
Phipps, C. J., Ellington, P. J., and Miller, J., concur in part and dissent in part.
34
See, e.g., Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013).
35
See generally Humphrey v. Walker, 294 Ga. 855, 860 (II) (A) (757 SE2d 68)
(2014) (“[T]o show prejudice, the errors of counsel must be so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”) (punctuation omitted).
18
A14A0610. FREEMAN v. THE STATE.
MILLER, Judge, concurring in part and dissenting in part.
While I agree with Divisions 1, 2, 3, 5, and 6 of the majority opinion, I cannot
agree with the majority’s opinion as to Division 4. The Constitution of the State of
Georgia mandates that “[i]n criminal cases, the defendant shall have a public and
speedy trial by an impartial jury.” (Emphasis added.) Ga. Const. of 1983, Art. 1, Sec.
1, Par. XI (a). The First and Sixth Amendments to the Constitution of the United
States also guarantee the right to a public trial. U. S. Const. Amend. 1; U.S. Const.
Amend. 6; Presley v. Georgia, 558 U. S. 209, 212 (130 SCt 721, 175 LE2d 675)
(2010). Federal courts have held that the First and Sixth Amendment rights to a
public trial attach to sentencing proceedings. See, e.g.,United States v. Thompson,
713 F3d 388, 393-394 (II) (8th Cir. 2013); United States v. Rivera, 682 F3d 1223,
1228-1229 (II) (B) (1) (9th Cir. 2012).
That is what we have here. Freeman was tried and convicted by a jury in open
court, and then the State moved to close the courtroom for a portion of the sentencing
proceedings. Freeman agreed to the closure. While Freeman may have waived his
Sixth Amendment right to a hearing in open court by acquiescing in the State’s
request, a defendant cannot waive the public’s interest in being present for the
sentencing portion of the trial. See Rivera, supra, 682 F3d at 1228 (II) (B) (1)
(recognizing that the “judge and prosecutor continue to bear grave responsibilities,
both to the accused and to the broader community, during sentencing proceedings”)
(emphasis supplied).
Courtrooms in Georgia have too often been closed, and there are only rare
circumstances in which a trial court may conduct proceedings outside the presence
of the public. See Presley, supra, 558 U. S. at 213; Judicial Qualifications
Commission, Opinion No. 239. While “[t]he right to an open trial may give way in
certain cases to other rights and interests, such as the defendant’s right to a fair trial
or the government’s interest in inhibiting disclosure of sensitive information[,] . . .
[s]uch circumstances will be rare . . . and the balance of interests must be struck with
special care.” (Citation omitted; emphasis added.) Presley, supra, 558 U. S. at 213.
Before a trial court can exclude the public from any stage of a criminal trial,
2
[t]he party seeking to close the hearing must advance 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.
(Citation and punctuation omitted.) Id. at 214.
In this case, the State did not advance an overriding interest that compelled the
courtroom to be closed. Notably, in requesting that the courtroom be closed, the State
merely stated that it expected to present evidence regarding open Georgia Bureau of
Investigations (GBI) cases and that this “evidence if presented in open court may
prejudice those investigations.” (Emphasis added.) The State then called a GBI officer
who testified that Freeman cooperated in certain investigations, but that his assistance
did not yield any valuable information.1 The officer’s testimony did not disclose any
sensitive information that could have possibly jeopardized any pending cases, and the
State did not present any evidence that the pending cases required any additional
investigation. There were other reasonable alternatives available, as the State could
have established in open court that Freeman was cooperative but ultimately unhelpful.
1
Although the trial court initially ordered the courtroom to be closed for other
witnesses as well, the record shows that the trial judge opened the courtroom after the
GBI officer testified.
3
Simply arguing that evidence may be related to a pending investigation does
not satisfy the State’s burden of establishing an overriding interest. If we were to hold
otherwise, a trial court would be authorized to close a courtroom based on conjecture.
Trial judges are the keepers of the courtroom, entrusted with serious responsibilities
to the parties and to the public at large. Maintaining public access serves to guarantee
the fairness of trials because it provides an opportunity for public scrutiny upon the
administration of justice See Munoz v. American Lawyer Media, L.P., 236 Ga. App.
462, 464 (1) (a) (512 SE2d 347) (1999) (recognizing that the news media serves to
guarantee the fairness of trials and to bring to bear the beneficial effects of public
scrutiny upon the administration of justice in both civil and criminal cases).
Closing courtrooms is the exception, not the rule, and, even where the parties
request closure, the trial court must protect the public’s constitutional right to access
and limit such access only when vitally necessary. See Presley, supra, 558 U.S. at
212-213; Judicial Qualifications Commission, Opinion No. 239. Where, as here, the
trial court unnecessarily closes the courtroom, the public’s trust and confidence in
judicial proceedings is eroded. For this reason, I dissent.
I am authorized to state that Chief Judge Phipps and Presiding Judge Ellington
join in this dissent.
4