Purvis v. the State.

• Decision Date: 18 March 2011
• Docket Number: No. S10G0664.,S10G0664.
• Citation: 288 Ga. 865,708 S.E.2d 283
• Parties: PURVISv.The STATE.
• Court: Georgia Supreme Court

288 Ga. 865
708 S.E.2d 283
11 FCDR 791

PURVIS
v.
The STATE.

No. S10G0664.

Supreme Court of Georgia.

March 18, 2011.

[708 S.E.2d 283]

John Gee Edwards, Valdosta, for appellant.Catherine Harris Helms, District Attorney, Albert Henry Tester, Asst. Dist. Atty., for appellee.HUNSTEIN, Chief Justice.

[288 Ga. 865] We granted certiorari to determine whether the Court of Appeals erred when it concluded that appellant Bobby Carroll Purvis's right to a public trial was not violated by the holding of his trial in the county jail. See Purvis v. State, 301 Ga.App. 648(3), 689 S.E.2d 53 (2009). Because appellant produced unrebutted evidence that jail authorities excluded from the jail courtroom appellant's brother, a member of the public who wanted to attend appellant's trial, in violation of his rights under the Sixth Amendment of the United States Constitution and Art. I, Sec. I, Par. XI(a) of the Georgia Constitution of 1983, we reverse.

1. Appellant was indicted in Berrien County on a charge of child molestation involving a family member. The jury for appellant's trial was selected at the Berrien County courthouse. However, the trial itself was held on October 3, 2006 in a courtroom

[708 S.E.2d 284]

in the county jail. The record is completely silent regarding the reason, if any, for the trial court's decision to move the trial from the county courthouse to the jail courtroom. After his conviction, appellant asserted in his motion for new trial, inter alia, that he was denied his right to a public trial. In support of his assertion, appellant introduced the testimony of his brother, who said he was unable to enter the jail courtroom on the day of the trial because the courtroom door was locked and, after pressing the buzzer and asking to be allowed in, the jailer refused to unlock the door, even after being informed the [288 Ga. 866] brother was there to observe the trial.¹ Although the State presented several jail officials who testified about their general policy to allow members of the public access to the jail courtroom, none of the State's witnesses directly rebutted the testimony by appellant's brother.² Indeed, the State expressly concedes in its brief that the brother “was kept out of the courtroom in the present case.” ³

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” The Sixth Amendment rights are applicable to the states. Kesler v. State, 249 Ga. 462, 471 fn. 5, 291 S.E.2d 497 (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const. of Ga.1983, Art. I, Sec. I, Par. XI(a).

Georgia law ... regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law. [Cits.] ... [O]ur state constitution point-blankly states that criminal trials shall be public. [Cit.] ... “We see no friction between these state and federal constitutional provisions, properly interpreted, since the objectives of both are identical: access to judicial hearings for the public and fair trials for criminal defendants.”

(Footnote omitted; emphasis in original.) [288 Ga. 867] R.W. Page Corp. v. Lumpkin, 249 Ga. 576, 578–579(3), 292 S.E.2d 815 (1982).⁴

We need not here resolve whether the holding of a criminal trial within the confines of a jail or prison, in and of itself, deprives a criminal defendant of the right to a public trial. But see, e.g., Washington v. Jaime, 168 Wash.2d 857, 233 P.3d 554 (2010) (jail house setting for trial inherently prejudicial); Bright v. Alaska, 875 P.2d 100 (Alaska App.1994) (absent showing of compelling reasons, criminal trial held in prison violated federal

[708 S.E.2d 285]

and state right to public trial); Vescuso v. Virginia, 5 Va.App. 59, 360 S.E.2d 547 (1987) (prima facie case of denial of public trial established when criminal trial held inside prison). See also Anno., Exclusion of Public from State Criminal Trial by Conducting Trial or Part Thereof at Other than Regular Place or Time, 70 A.L.R.4th 632 (1989). In this case, the violation of appellant's right to a public trial was established when he proved that his own brother, who wanted to attend the trial, was denied access to the courtroom without justification.

“In giving content to the constitutional and statutory commands that an accused be given a public trial, .... without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.” (Footnote omitted.) In re Oliver, 333 U.S. 257, 271–272, 68 S.Ct. 499, 92 L.Ed. 682 (1948). See also Vidal v. Williams, 31 F.3d 67, 69 (2d Cir.1994) (“the Supreme Court has specifically noted a special concern for assuring the attendance of family members of the accused”); Wisconsin v. Ndina, 315 Wis.2d 653, 761 N.W.2d 612 (2009) (exclusion of family members implicates Sixth Amendment right to a public trial). The closure of the courtroom to appellant's brother was neither brief nor trivial, as appellant's adult brother was kept out of the courtroom during the entire trial, which involved criminal charges brought against appellant in regard to a family member. Compare United States v. Perry, 479 F.3d 885(II)(A) (D.C.Cir.2007) (exclusion of defendant's eight-year-old son did not implicate Sixth Amendment right to public trial where trial on charges of unlawfully accessing a computer remained open to defendant's wife and general public); Carson v. Fischer, 421 F.3d 83, 93 (2nd Cir.2005) (no Sixth Amendment violation from exclusion during defendant's trial on narcotics [288 Ga. 868] charges of defendant's ex-mother-in-law during span of a single witness's testimony, when other family members and general public were present). Accordingly, we reject the State's argument that jail officials' deliberate exclusion of appellant's brother from the courtroom during the entire trial on charges involving a family member was mitigated in any manner by the fact that jail officials selectively allowed other members of the public to attend the trial.

We do not find it significant under the facts in this case that the trial court itself did not specifically order the exclusion of appellant's brother from the courtroom. Compare Presley v. Georgia, 558 U.S. ––––, 130 S.Ct. 721, 722, 175 L.Ed.2d 675 (2010) (trial court ordered courtroom closed during voir dire, thus excluding defendant's uncle, who was the “lone courtroom observer”); Reid v. State, 286 Ga. 484(3)(c), 690 S.E.2d 177 (2010) (trial court ordered courtroom temporarily...