R. W. Page Corp. v. Lumpkin, 38726

• Decision Date: 29 June 1982
• Docket Number: No. 38726,38726
• Citation: 292 S.E.2d 815,249 Ga. 576
• Court: Georgia Supreme Court
• Parties: , 8 Media L. Rep. 1824 R. W. PAGE CORPORATION v. LUMPKIN et al.

Page 815

292 S.E.2d 815

249 Ga. 576, 8 Media L. Rep. 1824

R. W. PAGE CORPORATION v. LUMPKIN et al.

No. 38726.

Supreme Court of Georgia.

June 29, 1982.

Grogan, Layfield, Agnew & Rumer, L. Martelle Layfield, Jr., Columbus, for appellant.

Arthur E. Mallory, III, Dist. Atty., Harger W. Hoyt, Asst. Dist. Atty., Marc E. Acree, Zachry & Kirby, Louis J. Kirby, Alfred F. Zachry, LaGrange, for appellees.

Rogers & Wells, Richard N. Winfield, David A. Schulz, Debra S. Weaver, Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., David J. Bailey, Elizabeth G. Crosby, Sell & Melton, E.S. Sell, Jr., Susan S. Cole, Hull, Towill, Norman & Barrett, W. Hale Barrett, David E. Hudson, Baker & Hostetler, Bruce W. Sanford, Lee Levine, Brian S. Harvey, Charles T. Shean, III, Wayne B. Mangum, J. Dunham McAllister, amici curiae.

JORDAN, Chief Justice.

The single issue presented is whether and, if so, when and how, trial and pretrial hearings in criminal cases may be closed to the public and to representatives of the news media.

Quite predictably, this issue arises out of a melodrama containing all of the elements that news reporters and their editors know from experience will excite the interest of substantial numbers of their readers, viewers and listeners. ¹ Twenty-one-year-old Rebecca Heath was found shot to death beside a road near Columbus, Georgia. She was nine months pregnant at the time of her death. Her husband and his girlfriend, who was the daughter of a prominent Virginia family, were charged with arranging for the murder. Charles Owens and Gregory Lumpkin were indicted as the "hit men" hired to do the killing. Her husband, his brother, and his girlfriend pled guilty, and Owens and Lumpkin proceeded to trial in the Superior Court of Troup County.

During a hearing on Lumpkin's motions, ² Lumpkin's trial defense counsel orally, without previous notice to anyone, without particularization of his cause or reasons, and without supporting evidence, moved that the courtroom be cleared of all persons except parties, counsel, and the clerk of court. The trial court summarily granted the motion.

A reporter for the Columbus Enquirer, who was present in the courtroom, asked the court to delay the effect of that ruling until he could confer with legal counsel for the newspaper, but the trial court denied this request and everyone present other than parties, counsel and the clerk of court were required to leave the courtroom.

During a subsequent pretrial hearing on motions, members of the general public and representatives of the news media again were cleared from the courtroom on Lumpkin's motion under similar circumstances and by application of similar procedures.

After the jury had been impanelled, sworn and sequestered, the trial court commenced a Jackson-Denno hearing for the purpose of determining, under the Miranda exclusionary rule, whether or not certain incriminating statements given to the investigating officers should be suppressed because the request for legal counsel was denied. ³ Lumpkin's attorney again requested that the news media representatives be sent out of the courtroom. This defense request arose from the fact that the trial court had decided to disperse rather than sequester the jury at the close of the day's proceedings, a procedure permitted by Georgia law since at this stage of the case the state no longer was seeking the death penalty. Code Ann. § 59-718.1; Jones v. State, 243 Ga. 820, 823(3), 256 S.E.2d 907 (1979); Dean v. State, 238 Ga. 537, 538(3), 233 S.E.2d 789 (1977); Brinks v. State, 232 Ga. 13, 14(7), 205 S.E.2d 247 (1974).

A reporter present inquired of the court whether he might be permitted to remain were he to promise not to print any evidence ultimately suppressed. The district attorney stated his agreement with the reporter's request. The trial court, however, ordered all media representatives to leave or be removed from the courtroom but allowed approximately thirty-five members of the general public, many of whom were friends or relatives of the victim, to remain present throughout the suppression hearing. When some reporters tried to reenter without any of their news-gathering paraphernalia, stating that they sought entry as members of the general public, they were physically restrained and ejected from the courtroom over objections expressed to and denied by the trial court. ⁴ When this request to reenter the courtroom was denied, this appeal promptly was filed. ⁵

We invited briefs from the various news gathering and publishing organizations having a stake in the outcome of this appeal, as well as from those officials who represent the state in criminal proceedings. After consideration of the well-prepared and thought-provoking briefs presented by and in behalf of these officials and organizations, we hold that we have jurisdiction to entertain this appeal, and we reverse the orders and rulings of the trial court for the reasons stated in this opinion.

1. The appeal is not moot because the underlying dispute is "capable of repetition, yet evading review." Globe Newspaper Co. v. Superior Court For The County of Norfolk, 457 U.S. 596, 102 S.Ct. 2613, 72 L.Ed.2d ---- (No. 81-611, decided 6-23-82). Richmond Newspapers v. Virginia, 448 U.S. 555, 563, 100 S.Ct. 2814, 2820, 65 L.Ed.2d 973 (1980).

2. Direct appeal to this court, rather than a separate proceeding in the trial court ⁶ is the most judicially economical, swift, and certain means for the protection of the right of the public, hence, of the news media, to be present during judicial hearings in criminal cases. See, WXIA-TV v. Devier, 5 Med.L.Rptr. 2454 (Ga.Supr.Ct.1980); City of Kennesaw v. Ravan, 245 Ga. 226, 264 S.E.2d 200 (1980); Darden v. Ravan, 232 Ga. 756, 208 S.E.2d 846 (1974).

3. Georgia law, as we perceive it, regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law. Georgia Gazette Publishing Co. v. Ramsey, 248 Ga. 528, 284 S.E.2d 386 (1981); Lancaster v. State, 168 Ga. 470, 475(4), 148 S.E. 139 (1929); Moore v. State, 151 Ga. 648, 108 S.E. 47 (1921); Myers v. State, 97 Ga. 76, 77(5), 98(5), 25 S.E. 252 (1895); Lowe v. State, 141 Ga.App. 433, 435, 233 S.E.2d 807 (1977); Globe Newspaper Co. v. Superior Court For The County of Norfolk, supra; Richmond Newspapers v. Virginia, supra; Gannett v. DePasquale, 443 U.S. 368, 99 S.Ct. 2898, 61 L.Ed.2d 608 (1979). Although the sixth amendment to our federal constitution (Code Ann. § 1-806) affords the accused a right to a public trial, our state constitution point-blankly states that criminal trials shall be public. Const. of Ga. 1976, Art. I, Sec. I, Para. XI (Code Ann. § 2-111). ⁷ We construe that state constitutional provisions to be as applicable to pre-trial, mid-trial, and post-trial hearings as to the trial itself. 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.

4. The appeal has been presented in terms of balancing the sixth amendment right of the defendant to a fair trial against the first and fourteenth amendment rights of the public to gain access to hearings in criminal cases. This perception is too narrow, since the state or federal governments easily can have an interest in the closing of segments of criminal proceedings in order to protect national security, to protect informers or witnesses for the prosecution or to encourage witnesses to abandon their fears or reluctance to testify and to speak the entire truth. Businessmen, perhaps as victims of the crime for which the defendant is on trial, may have legitimate interests in preserving their trade and business secrets from the general knowledge of the community. We could theorize other circumstances in which neither the federal nor the state constitutional provision regarding public trials should be construed so rigidly as to mandate harm to persons who may be interested in or affected by what transpires during the trial of, or hearings relating to, criminal cases. But the fact of many possible exceptions allowing closure should not be allowed to obscure the extreme importance of the strong presumption favoring the general rule, which is that in Georgia, the criminal trial itself, and all its consequent hearings on motions (pre-trial, mid-trial and post-trial) shall be open to the press and public on equal terms unless the defendant or other movant is able to demonstrate on the record by "clear and convincing proof" that closing the hearing to the press and public is the only means by which a "clear and present danger" to his right to a fair trial or other asserted right can be avoided. A Georgia trial court judge must approach these issues possessed of less discretion than his federal counterpart because our constitution commands that open hearings are the nearly absolute rule and closed hearings the very rarest of exceptions.

In most instances when these rights of the public and the defendant seem to be on a collision course, Georgia trial judges will discover that postponing the hearing on an issue (such as a suppression question) until the jurors are sworn and sequestered for the duration of the trial will prove to be entirely adequate to protect the defendant from prejudice that might result from information reaching the empaneled jurors through the news media. While federal trial court judges are admonished to consider jury sequestration (or some other remedy) as an alternative to the closing of hearings to the public and the press, we now hold that a Georgia trial court judge shall use jury sequestration (or some other means) to exclude prejudicial matters from the jury's knowledge and consideration unless for some reason fully articulated in his findings of fact and conclusions of law jury...