State v. Brown, A11A2121.

• Decision Date: 29 March 2012
• Docket Number: No. A11A2121.,A11A2121.
• Citation: 12 FCDR 1410,315 Ga.App. 282,726 S.E.2d 764
• Parties: The STATE v. BROWN.
• Court: Georgia Court of Appeals

315 Ga.App. 282
726 S.E.2d 764
12 FCDR 1410

The STATE
v.
BROWN.

No. A11A2121.

Court of Appeals of Georgia.

March 29, 2012.

[726 S.E.2d 765]

Patrick H. Head, John C. Butters, John E. Floyd, Atlanta, for The State.

Roy E. Barnes, Craig A. Gillen, Atlanta, and John Frank Salter Jr., Albany, for Brown.

MIKELL, Presiding Judge.

[315 Ga.App. 282]The State of Georgia appeals the grant of Dwight Brown's motion in abatement which quashed the indictment against him because it was not returned in “open court.” Finding no error, we affirm.¹

On January 6, 2011, a Cobb County grand jury returned an indictment against Dwight Brown in a courtroom in the recently constructed Cobb County Courthouse (the “Courthouse”). At the time the indictment was returned, the Courthouse had limited accessibility[315 Ga.App. 283]to the public while court employees were moving into it. As a result of this limited access, Brown filed a motion in abatement contending that the indictment was defective because it was not returned in open court. Following an evidentiary hearing, the trial court granted Dwight Brown's motion and quashed the indictment, holding that the indictment was fatally defective because it was not returned in open court.

At the time the indictment was returned, every exterior doorway was locked and the only entrance available to the public was a walkway, guarded by deputies, connecting the old and the new courthouses. The deputies were stationed there to ensure the integrity of the clerk's office files being transferred to the new building and as a security measure because some construction workers in the Courthouse were using knives and hammers to install carpeting.

J. Cameron Tribble, an attorney at the firm representing Brown, went to the Courthouse to observe the return of the indictment against Brown. Tribble found the doors to the courthouse either locked or guarded by sheriff's deputies. To gain entry to the Courthouse, he was instructed to call the court administrator and obtain a personal escort across the walkway to the courtroom. He did so, and it took several minutes for the court administrator to meet him so that he might be escorted into the Courthouse. By the time Tribble was finally able to enter the courtroom, he had missed the return of Brown's indictment. The presiding judge testified that he did not intend to exclude anyone from the courtroom and that the media and sheriff's department personnel were present in the courtroom. Tribble was delayed approximately ten to fifteen minutes because he could not enter the front entrance of the Courthouse.

Following an evidentiary hearing on Brown's motion in abatement, the trial court found that because Tribble was “delayed and impaired from reaching [the courtroom]”, the indictment was not returned in open court. Accordingly, the trial court granted the motion in abatement and quashed his indictment. The state appeals, arguing that there is no requirement that an indictment be returned in open court; that the indictment was returned in open court; and if the indictment were found to be not returned in open court, such error was harmless because there was no prejudice to the defendant.

The state argues that there is no law requiring an indictment to be returned in open court because neither the United States Constitution nor the Constitution of the State of Georgia addresses this issue. However, Georgia case law has long held that an indictment [315 Ga.App. 284]must be returned in open court to be valid.² This requirement “must be complied with in every case,” ³ and failure to comply strictly with this rule may nullify an otherwise valid indictment.⁴ This court has held that to satisfy the ‘in open court'requirement,

[726 S.E.2d 766]

the “place of the reception of the indictment must be one where the court is being held open to the public.” ⁵ The rationale behind “surrounding the return of an indictment with formalities and requiring that it be returned in open court is to prevent the administration of criminal laws taking on the aspect of ‘star-chamber’ proceedings.” ⁶ Further, our Supreme Court has explained that were the ‘in open court’ rule otherwise, “it would render it possible for a designing or revengeful foreman of a grand jury to ruin any citizen by surreptitiously filing with the clerk in his office an indictment manufactured by himself alone, upon which his fellow jurors had taken no action.” ⁷

The state notes that Zugar v. State, which stands for the premise that an indictment must be returned in open court pursuant to the Fifth Amendment, relied upon a federal case that has since been abrogated.⁸ Despite any abrogation at the federal level, however, our Supreme Court has not abrogated this rule and we are bound to follow the decisions of our Supreme Court.⁹

In this case, the Courthouse had limited accessibility at the time the indictment was returned against Brown: the exterior doors were locked, the only entrance to the courthouse—the catwalk—was guarded by deputies, and Tribble was required to call the court administrator in order to be escorted to the courtroom. Tribble was thereby delayed by approximately ten to fifteen minutes in reaching the courtroom, and, as a result, was not present when the indictment[315 Ga.App. 285]was returned. Because of these factors, we find that the courtroom was not open to the public at that time.

Contrary to appellant's arguments, the fact that other members of the public, including members of the media, were in the courtroom does not mean that the indictment was returned ‘in open court’ for purpose of this analysis. In Cadle, the fact that a number of people, including defendant's attorneys, were present at the time an indictment was returned in the presiding judge's chambers adjacent to the courtroom, and not in the courtroom itself, did not alter this Court's conclusion that the indictment was not returned in open court.¹⁰

Further, appellant's argument that Brown has not alleged any prejudice or injury and, accordingly, any error by the trial court is merely harmless error, is meritless. The Georgia Supreme Court has held that any failure to return the indictment in open court “is per se injurious to the defendant.” ¹¹ None of the cases cited by appellant ¹² involve the abandonment of the formalities surrounding the return of the indictment, and thus are inapposite to the case at hand.

Thus, under the circumstances presented here, appellant has failed to show that the

[726 S.E.2d 767]

trial court erred in granting the motion in abatement and quashing the indictment.

Judgment affirmed.

BARNES, P.J., MILLER and ADAMS, JJ., concur. DILLARD, J., concurs fully and specially. BLACKWELL and BOGGS, JJ., dissent.

DILLARD, Judge, concurring fully and specially.

I concur fully with the majority opinion and write separately only to further address Judge Boggs's argument that the court in the case sub judice was open and that the majority's holding “will result in challenges to the open-court rule based upon claims by lawyers or members of the public who arrive at the courthouse minutes before they believe an indictment to be returned, only to be briefly detained by courthouse security or a crowded elevator.”

It is undoubtedly true that post-September 11, we live in a world of heightened security. But the reality is that such “inconveniences” are to be expected and anticipated and are now, unfortunately, almost as commonplace as the nuisance of a crowded elevator. Nevertheless, [315 Ga.App. 286]these situations can certainly be mitigated to some degree by proper planning and time management. Indeed, as the dissent implies, better planning and time management on the part of Brown's attorney may have been warranted in this case. But ultimately, the punctuality (or lack thereof) of Brown's attorney is beside the point, and does nothing to change the fact that the courthouse in question was not open to the public.

Indeed, the record reflects that Brown's attorney required an escort to gain entry into the courthouse and was informed by the escort that the courthouse was not opening to the public until the following week. Additionally, the court administrator for the Cobb Superior Court testified that the courthouse was scheduled to open “for judges to conduct court in the new building” on January 10, 2010 (four days after the return of the indictment against Brown), and that the main exterior doors of the new courthouse were locked. And anyone who gained access to the new courthouse via the catwalk connecting it from the old courthouse would have passed through a standard security checkpoint for the old courthouse prior to reaching the separately guarded catwalk.

As to the specifics of who could access the new courthouse on the day in question, the Sheriff of Cobb County testified that arrangements were made so that “only the presentments” could be received in the new courthouse and that he instructed his staff “to allow anyone that wanted to come into this courtroom, if they had business in this courtroom [,] to come, to allow them,” ¹ and to provide an escort if necessary. The sheriff further corroborated testimony that the new courthouse was scheduled to officially open—and did officially open—the following week, and that the main entrance to the new courthouse was closed on the day in question, with access limited to use of the guarded catwalk that, again, could be reached after passing through an earlier security checkpoint.

The sheriff agreed that a person, after having passed through the initial security checkpoint, could have gone anywhere else except the new courthouse without further checks. But upon reaching the catwalk to the new courthouse, a person would have been subjected to an inquiry as to what his or her business was in the new courthouse. And when asked if access would have been granted to a person who...