Perry v. State, s. A94A2345
| Decision Date | 17 March 1995 |
| Docket Number | Nos. A94A2345,A94A2346,s. A94A2345 |
| Parties | PERRY v. The STATE. HUNTER v. The STATE. |
| Court | Georgia Court of Appeals |
Richard S. Alembik, Decatur, for Perry.
Mercedes Murrell, Atlanta, for Hunter.
Lewis R. Slaton, Dist. Atty., Carl P. Greenberg, Anita T. Wallace, Asst. Dist. Attys., Atlanta, for appellee.
Cathy Morris Alterman, Atlanta, for other interested parties.
Aaron Perry and Carlton Hunter were indicted and convicted by a jury of kidnapping, OCGA § 16-5-40, and armed robbery, OCGA § 16-8-41. 1 Their motions for new trial were denied, and they appeal.
1. Perry and Hunter enumerate as error the conduct of the trial court in removing them from the courtroom during the testimony of three rebuttal witnesses for the State. Out of the presence of the jury, the prosecutor informed the trial court that the witnesses were afraid to testify and feared for their lives. The trial court agreed to speak with the witnesses. Counsel for appellants objected to proceedings taking place out of the presence of their clients. The trial court overruled the objections and ordered appellants removed from the courtroom while the witnesses were examined.
Contrary to the dissent's contention, the proceedings which took place while appellants were excluded clearly were not "a conference in chambers dealing solely with questions of law." Three witnesses gave testimony out of the presence of the jury on the rebuttal issues for which the State had called them, primarily concerning the alibi of appellants' co-defendant and communications with his attorney. This testimony was lengthy and, according to counsel for appellant Hunter, lasted almost three hours. However, only two of the witnesses testified with respect to any fear for their lives; both testified that no threats had been made against them and they were not fearful of the defendants, but rather were uneasy about testifying and about the judicial process in general. Two of the witnesses later testified before the jury to essentially the same substantive matters to which they testified earlier before the trial court. This was clearly not a "conference" on a "question of law," but testimony given by three witnesses for the State.
The trial court erred in removing appellants from the courtroom, over objection, while witnesses testified for the State in a criminal prosecution. This is, on its face, a violation of appellants' rights under the confrontation clauses of the Georgia and United States Constitutions, as well as their right to be present at their trial under Ga. Const.1983, Art. I, Sec. I, Par. XII. " Wilson v. State, 212 Ga. 73, 74-75, 90 S.E.2d 557 (1955) (). Pierce v. State, 47 Ga.App. 830, 831, 171 S.E. 731 (1933) ().
Appellants' right to be present even during argument of counsel is unquestioned; certainly appellants had the right to be present while witnesses testified against them. Even if that testimony was ostensibly in the nature of a proffer, that does not transform those proceedings into a "conference," as the dissent contends. The presence of the accused during actual testimony is crucial; he may identify inconsistencies or other problems in a witness's testimony which are unknown to his attorney and may guide his attorney in effective cross-examination.
The cases cited by the dissent do not provide authority for this unprecedented and drastic curtailment of the right of confrontation. In Wanzer v. State, 232 Ga. 523, 526, 207 S.E.2d 466 (1974), appellant's counsel initiated a motion for mistrial in the trial judge's chambers without requesting the presence of his client, who was in the next room when the motion was made. However, appellant was present in the courtroom during the questioning of the jurors in connection with the motion. The Georgia Supreme Court held that under the particular facts presented the trial court did not err in denying the motion for mistrial. In Ortiz v. State, 188 Ga.App. 532, 535(2), 374 S.E.2d 92 (1988), we approved the practice of allowing victims in child molestation cases to testify from a chair placed at an angle, so that they need not stare directly at the accused while testifying. However, the child victim in that case remained in full view and hearing of the accused, the court, and the jury. In Andrews v. State, 196 Ga. 84, 94, 26 S.E.2d 263 (1943), court-appointed counsel requested dismissal by the trial court in the presence of and with the consent of defendant's retained counsel. The Georgia Supreme Court held that the trial court's action in releasing appointed counsel, which the court described as "a gratuity to which the defendant had no right," id., was not reversible error. In Gray v. State, 229 Ga. 808, 194 S.E.2d 479 (1972), the trial court belatedly realized the defendant was returning from lunch or a cigarette break as the district attorney began administering the oath to the jury. The trial judge immediately stopped the proceedings and reswore the jury in the defendant's presence, and the Georgia Supreme Court held that "nothing occurred in the trial of the case in the absence of the appellant." 229 Ga. at 809, 194 S.E.2d 479. 2
None of these cases deals with the primary focus of appellants' right of confrontation: to be present and observe the witnesses testifying against them. Moreover, the cases cited by the dissent involve either an inadvertent absence from the courtroom or action initiated by defense counsel in his client's absence. Here, the trial court itself acted to deprive appellants of "this great and important right," over the objection of counsel.
We do not foreclose the possibility that other circumstances might warrant an inquiry into real and verifiable threats against a witness or require further action on the trial court's part. However, it is undisputed that the witnesses here, when examined on the point, testified that no threats had been made against them and they were not in actual fear for their lives. What inquiries may be necessary and what remedies may be crafted to protect a witness from the threat of imminent physical harm, we reserve for decision when that issue is squarely presented. In this instance, however, the trial court erred in barring appellants from the courtroom during the testimony of three witnesses for the State, and therefore a new trial is required.
2. Appellants' remaining enumerations of error need not be addressed, as they involve matters unlikely to recur on retrial.
Judgment reversed.
Three rebuttal witnesses for the State were examined outside the presence of the defendants (and the jury), with only counsel present. Counsel for each of the three co-defendants on trial objected on the ground the defendants had a constitutional right to be present at all proceedings in the trial. The three witnesses were from the company at which co-defendant Aaron Hunter had testified he worked on the day and at the time of the incident on trial. They testified that Aaron Hunter did not work for the company and that the time sheet he presented was a forgery, thus rebutting his alibi. Two of them testified again, to the same effect, in the presence of defendants and the jury.
Appellant Hunter rests his argument on "the legal right of a person accused of crime in this State to be present at all stages of his trial." Wilson v. State, 212 Ga. 73, 74, 90 S.E.2d 557 (1955). It is derived from the 1983 Georgia Constitution, Art. I, Sec. I, Par. XII, which provides that "No person shall be deprived of the right to prosecute or defend, either in person or by an attorney, that person's own cause in any of the courts of this state." He cites, however, Paragraph XIV, which contains the confrontation clause.
Appellant Perry rests his argument in support of the right to be present at every stage on what he terms the confrontation clauses of the Georgia and United States Constitutions, citing Paragraph XII of the Georgia Bill of Rights and the federal Sixth Amendment. Federal constitutional law need not be decided in this case because there is an adequate state constitutional remedy. It lies in Paragraph XII, but probably not in Paragraph XIV.
The three witnesses at issue were not witnesses against either appellant but rather against their co-defendant. Although defendants were not present when they were first examined out of the jury's presence due to some professed fear, two of them were...
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