Presley v. State

The Court granted a writ of certiorari to the Court of Appeals in Presley v. State, 290 Ga. App. 99 (658 SE2d 773) (2008), to review its ruling that the trial court did not err in ordering that spectators be excluded from the courtroom during jury voir dire in Eric Presley’s trial for cocaine trafficking, which resulted in his conviction. Finding no infirmity in the trial court’s directive, we affirm.

At Presley’s trial, before the prospective jurors were brought into the courtroom for jury voir dire, the trial court inquired of a *271courtroom observer: “Now, the gentleman in the black shirt, sir, do you have a case or . . . ,” which elicited the response: “No, I’m just here.” The trial court replied: “The reason I say that is for all the other observers in the courtroom, when I — when the jurors come up, they will be sitting on those rows, and you can’t sit on the same rows with the jurors.”

After an unrecorded colloquy, the court said: “And, and the gentleman in the black shirt, you should not hang around on the sixth floor. He can go down to the, maybe the snackbar? ... Is he a witness? Are you a witness?” The observer replied: “No, I’m Mr. Presley’s uncle.” The court said:

Okay. Well, you still can’t sit out in the audience with the jurors. You know, most of the afternoon actually we’re going to be picking a jury. And we may have a couple of pre-trial matters, so you’re welcome to come in after we píete [sic] — complete selecting the jury this afternoon. But, otherwise, you would have to leave the sixth floor, because jurors will be all out in the hallway in a few moments. That applies to everybody who’s got a case.

Presley’s counsel objected to “the exclusion of the public from the courtroom.” The court responded:

I’m not excusing the public from the courtroom. There just isn’t space for them to sit in the audience. We have very small courtrooms, and the witnesses and relatives cannot sit in the audience beside the potential jurors. That will be grounds for a mistrial, and because of a tainted jury panel.

Presley’s counsel then said: “Well, I’m wondering, Your Honor, whether . . . some accommodation could not be made for both, some of those members of the family and the jurors?” The court answered:

Well, the uncle can certainly come back in once the trial starts. There’s no, really no need for the uncle to be present during jury selection. When the trial starts, he can certainly come back into the courtroom. But he — we have 42 jurors coming up. Each of those rows will be occupied by jurors. And his uncle cannot sit and intermingle with members of the jury panel. But, when the trial starts, the opening statements and other matters, he can certainly come back into the courtroom.

Presley took exception to the court’s ruling.

*272After his conviction, Presley moved for a new trial on the general grounds, and amended that motion to include the ground that the trial court erred in “refusing to make an accommodation” so as to allow observers at all phases of his trial. At the hearing on the motion for new trial, Presley presented evidence regarding how many persons could be seated in the courtroom’s four rows of seats; he asserted that 58 could be comfortably accommodated, and contended that additional seating could have been brought into the courtroom to accommodate observers and potential jurors.1

A criminal defendant has the right to a public trial under the Sixth and Fourteenth Amendments to the Constitution of the United States. Waller v. Georgia, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984).2 This right extends to the proceedings of jury voir dire and selection. Id. at 45-46. See also Press-Enterprise Co. v. Superior Court of California, 464 U. S. 501, 510 (104 SC 819, 78 LE2d 629) (1984). Under Waller, to exclude the public from a trial, there must be “an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure.” Id. at 48 (II) (B). Here, the trial court certainly had an overriding interest in ensuring that potential jurors heard no inherently prejudicial remarks from observers during voir dire. See Sharpe v. State, 272 Ga. 684, 687-688 (5) (531 SE2d 84) (2000).3 And, the trial court based its decision to exclude observers on the fact that, given the arrangement of the courtroom, observers would be “intermingle[d]” with the potential jurors, and explained this concern to counsel. Nor was the trial court’s order overbroad; the court made it clear that the exclusion of observers was only for the duration of jury voir dire.

*273Nonetheless, Presley asserts that the trial court’s action was infirm because the trial court did not consider any alternatives to excluding all observers. However, no alternatives were suggested to the court; Presley’s only reference regarding the subject was a nebulous request for “accommodation . . . for both, some of those members of the family and the jurors?” It has been noted that, although Waller declared that trial courts are to consider alternatives to closure, the United States Supreme Court did not provide clear guidance regarding whether a court must, sua sponte, advance its own alternatives to it. See Ayala v. Speckard, 131 F3d 62, 70-72 (II) (B) (2nd Cir. 1997) (addressing closure during the period of time that undercover police witnesses were testifying). In that regard, we are persuaded by the reasoning of People v. Ramos, 685 NE2d 492 (N.Y. 1997), that, when a court is considering whether to close a portion of the proceedings, and there is no discussion on the record regarding alternative actions,4 “it can be [inferred] that the trial court, in ordering closure, determined that no lesser alternative would protect the articulated interest. [Cits.]” Id. at 504. See also Ayala, supra. Accordingly, it is appropriate to “conclude that, where the factual record permits closure and the closure is not facially overbroad, the party opposed to closing the proceeding must alert the court to any alternative procedures that allegedly would equally preserve the interest. [Cit.]” Ramos, supra at 504.

Any other rule would place an impractical — if not impossible — burden on trial courts .... Even if the court were to hold a separate hearing on the issue, or itself consider and reject some alternatives to closing the proceeding, a defendant on appeal could likely always [suggest another alternative]. Under these circumstances, placing the onus wholly on trial courts would provide an incentive for defendants to remain silent. [Cit.]

Id. at 505.

Ruling that, in these circumstances, Presley was obliged to present the court with any alternatives that he wished the court to consider, recognizes the general appellate precept that one who objects to an action of the trial court must raise the issue at the time of the trial court’s action, so as to afford the court the opportunity to take any appropriate remedial action, or else forfeit review. See White v. State, 281 Ga. 276, 280 (5) (637 SE2d 645) (2006). It also is consistent with the long-standing principle that

*274[t]he conduct of the trial of any case is necessarily controlled by the trial judge, who is vested with a wide discretion and in the exercise of which an appellate court should never interfere unless it is made to appear that wrong or oppression has resulted from its abuse.

Lemley v. State, 245 Ga. 350, 353-354 (3) (264 SE2d 881) (1980). (Citations and punctuation omitted.) When neither the defendant nor the State directs the court’s attention to alternatives, there is no abuse of discretion in the court’s failure to sua sponte advance its own alternatives.5

Judgment affirmed.