concurring specially.
Although I agree with the result reached by the majority, I am unable to fully endorse all that is said in Division 3. I agree wholeheartedly that it violates state law for a district attorney or members of his staff to remain in the presence of the grand j ury while the grand jury is deliberating, voting or deciding any other action concerning an indictment. However, I decline to adopt the majority’s position that the mere presence of an unauthorized person before the grand jury, without a showing of prejudice, is a sufficient ground to set aside an indictment. Rather than the harmful as a matter of law analysis espoused by the majority, I would adopt the rule that a defendant must show that the presence of a district attorney or a staff member during grand jury deliberations and voting prejudiced the grand jury before an indictment is set aside.
While Colon does not cite any Georgia case law which specifically addresses the presence of a prosecutor during grand jury deliberations and voting, and we can locate no Georgia case law specifically addressing this issue, Georgia cases and United States Supreme Court cases hold that a defendant must show prejudice when raising an issue regarding other grand jury irregularities. In Bank of Nova Scotia v. United States,51 the Supreme Court held that “dismissal of the indictment is appropriate only if it is established that the violation substantially influenced the grand jury’s decision to indict, or if there is grave doubt that the decision to indict was free from the substantial influence of such violations.” Likewise, in Mach v. State,52 this Court refused to reverse a conviction on the ground of irregularity in the grand jury proceeding because the defendant had failed to show any prejudice resulting from the irregularity.
While all unauthorized persons must vacate the grand jury room while the grand jury is deliberating and voting, we note that the grand jury’s determination is a preliminary one, and the defendant enjoys the full panoply of constitutional protections at trial. Here, even assuming that a member of the district attorney’s staff improperly remained in the room while the grand jury deliberated and voted on whether to indict Colon, Colon has failed to show how this irregularity prejudiced the grand jury. Colon’s failure to show any infringement on the ability of the grand jury to exercise its independent judgment in the charging decision necessitates a denial of his motion to dismiss.53
*86Decided August 11, 2005 W. Keith Barber, for appellant. Richard A. Mallard, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.Moreover, regardless of the analysis espoused by the majority or my special concurrence in this case, it is undisputed that Colon has already been convicted by a jury. Therefore, as noted by the majority, any irregularity in the grand jury proceedings has been rendered moot.54 Accordingly, I concur with the ultimate result.
(Citation and punctuation omitted.) 487 U. S. 250, 256 (II) (108 SC 2369, 101 LE2d 228) (1988).
109 Ga. App. 154, 158 (1) (b) (135 SE2d 467) (1964), superseded by statute on other grounds, State v. Cook, 172 Ga. App. 433, 437-439 (2)-(4) (323 SE2d 634) (1984).
See United States v. Wingo, 723 FSupp. 798, 803 (N.D. Ga. 1989).
United States v. Mechanik, 475 U. S. 66, 71 (106 SC 938, 89 LE2d 50) (1986); Isaacs v. State, 259 Ga. 717, 720 (2) (b) (386 SE2d 316) (1989).