Tolbert v. State

• Decision Date: 07 October 2013
• Docket Number: No. A13A0097.,A13A0097.
• Citation: 321 Ga.App. 637,742 S.E.2d 152
• Parties: TOLBERT v. The STATE.
• Court: Georgia Court of Appeals

321 Ga.App. 637

742 S.E.2d 152

TOLBERT

v.The STATE.

No. A13A0097.

Court of Appeals of Georgia.

April 25, 2013.

Certiorari Denied Oct. 7, 2013.

Cook & Connelly, Bobby Lee Cook, C. Sutton Connelly, Summerville, for Appellant.

Leigh Ellen Patterson, Dist. Atty., Natalee Lyn Staats, Asst. Dist. Atty., for Appellee.

McFADDEN, Judge.

A jury convicted Don Thomas Tolbert of various counts of child molestation, aggravated child molestation, enticing a child for indecent purposes, and aggravated sodomy, and the trial court denied Tolbert's motion for new trial. On appeal, Tolbert argues that the trial court erred when, at two points during the trial, it held a bench conference outside of Tolbert's presence and then closed the courtroom for a portion of the trial. As detailed below, to the extent Tolbert claims as error the two courtroom closures, we find that he has waived appellate review of those claims by acquiescing to one of the two closures and failing to timely object to the other. We further find that the trial court did not err in holding the bench conferences outside of Tolbert's presence, because the discussions at those conferences did not implicate his constitutional right to be present at critical stages of the proceedings. Accordingly, we affirm.

1. Closing the courtroom.

The trial court closed the courtroom twice during Tolbert's trial. The first instance occurred during the publication of video recordings of the two minor victims' statements to a forensic interviewer and the interviewer's testimony about those statements. The second instance occurred during the live testimony of the two victims, who were ages six and ten when they testified. Both victims testified that Tolbert had committed sexual offenses against them.

OCGA § 17–8–54 provides:

In the trial of any criminal case, when any person under the age of 16 is testifying concerning any sex offense, the court shall clear the courtroom of all persons except parties to the cause and their immediate families or guardians, attorneys and their secretaries, officers of the court, jurors, newspaper reporters or broadcasters, and court reporters.

This Code section is “based upon a legislative determination that there is a compelling state interest in protecting children while they are testifying concerning a sex offense.” (Citation omitted.) Hunt v. State, 268 Ga.App. 568, 571(1), 602 S.E.2d 312 (2004). The partial closure of the courtroom permitted under this Code section does not violate a defendant's constitutional right to a public trial. See Clark v. State, 309 Ga.App. 749, 751(2), 711 S.E.2d 339 (2011); Goldstein v. State, 283 Ga.App. 1, 3–4(2), 640 S.E.2d 599 (2006).

By its terms, OCGA § 17–8–54 authorized the trial court to clear the courtroom while the two minor victims testified. To the extent the trial court improperly required persons excepted from OCGA § 17–8–54 to leave the courtroom as well, Tolbert waived appellate review of their exclusion by not objecting to it at trial. Delgado v. State, 287 Ga.App. 273, 279(2), 651 S.E.2d 201 (2007); Hunt, 268 Ga.App. at 571(1), 602 S.E.2d 312.

In contrast, OCGA § 17–8–54 did not authorize the trial court to clear the courtroom while recordings of interviews with the victims were published to the jury, or during the testimony of the forensic interviewer. But the record shows that Tolbert's counsel had a role in eliciting the trial court's decision to clear the courtroom at that point in the trial. Immediately before closing the courtroom, the trial court held a bench conference with Tolbert's counsel and the prosecutor at which the following exchange occurred:

[Prosecutor]: [The forensic interviewer] is the next witness, and we're going to play the videos. And I wanted to clear the courtroom for the playing of the videos. And I've already discussed it with [Tolbert's counsel], and he agrees. I just didn't know if you wanted to do it before [the witness] took the stand or if you want to wait until we begin the videos. I'll do it—

The Court: Which way do you want to do it?

[Prosecutor]: I think I'd rather just go ahead and do it so there won't be a disruption.

[Tolbert's Counsel]: I'd like to get them out of here first.

(Emphasis supplied.) “A party may not complain on appeal of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” (Citation omitted.) Holcomb v. State, 268 Ga. 100, 103(2), 485 S.E.2d 192 (1997).

2. Exclusion from bench conferences.

The record shows that Tolbert was not present at the bench during the bench conferences that immediately preceded the two courtroom closures. He argues that his absence from these two bench conferences violated his constitutional right to be present at all critical stages of his trial. We disagree.

“[T]he Georgia Constitution guarantees criminal defendants the right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” (Citations and punctuation omitted.) Zamora v. State, 291 Ga. 512, 517–518(7)(b), 731 S.E.2d 658 (2012).

This right exists where there is a reasonably substantial relation to the fullness of opportunity to defend against the charge and to the extent that a fair and just hearing would be thwarted by the defendant's absence. [Our Supreme Court has] previously held that the constitutional right to be present is not violated when the defendant's absence occurs during conferences addressing legal matters to which the defendant cannot make a meaningful contribution.

(Citations and punctuation omitted.) Campbell v. State, 292 Ga. 766, 770(4), 740 S.E.2d 115 (2013). See also Parks v. State, 275 Ga. 320, 322–323(3), 565 S.E.2d 447 (2002).

Neither of the bench conferences at issue in this case implicated Tolbert's constitutional right to be present. Rather, the discussions at the conferences addressed either legal issues or courtroom logistics, neither to which Tolbert could have made a meaningful contribution. At the first bench conference, set forth above, counsel merely informed the trial court of their agreement to close the courtroom for the playing of the victims' recorded statements and the forensic interviewer's testimony regarding those statements, and they discussed with...