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                               http://www.gaappeals.us/rules/


                                                                       July 16, 2014




In the Court of Appeals of Georgia
 A14A0610. FREEMAN v. THE STATE.                                              DO-022 C

      DOYLE , Presiding Judge.

      Following a jury trial, Leonard Freeman was convicted of burglary1 and

attempted malice murder.2 He now appeals from the denial of his motion for new trial,

assigning as error (1) the admission of statements he made during a police interview,

(2) the admission of hearsay testimony of an emergency medical worker who attended

to the victim, (3) the denial of his motion for a mistrial due to lack of access to real-

time court reporting, (4) the closure of the courtroom during sentencing, (5) failure

to sentence him as a first offender, and (6) ineffective assistance of counsel. For the

reasons that follow, we affirm.


      1
          OCGA § 16-7-1 (b).
      2
          OCGA §§ 16-4-1; 16-5-1 (a).
      Construed in favor of the verdict,3 the evidence shows that a police officer

responded to a nighttime 911 call about a burglary in progress and encountered

Freeman, whom the officer knew, walking near the victim’s address. Freeman, who

lived across the street, denied any knowledge of the burglary, so the officer

investigated the house for damage and, upon shining his flashlight in a bedroom

window, saw Jan Nelson, Freeman’s mother-in-law, on the floor covered in blood.

The officer radioed for emergency medical services (“EMS”), and a responding

medical technician, Russell Fortenberry, spoke to Nelson about her injuries. Nelson

told Fortenberry that she had awoken to go to the bathroom and found someone in her

house who tried to smother her by putting a bag over her head, and she had somehow

hit her head.

      An investigator arrived at the scene and learned of a small hammer and axe

handle found near a pool of blood in a bedroom of Nelson’s house. The investigator

visited Freeman at his home, and Freeman told the investigator he had been asleep in

his house at 3:00 a.m. when his phone rang, and upon seeing Nelson’s name on his

caller i.d., he went to go check on her. When later visited by an investigator at

Nelson’s hospital room, Freeman later claimed that the axe handle belonged to him,

      3
          See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

                                          2
but denied ownership of the hammer. During another subsequent conversation with

police outside his home, Freeman told an investigator that earlier he had misled police

about being asleep, and he had actually been outside his house drinking liquor.

      Freeman later gave a recorded interview at the police department, and

following that, he agreed to undergo a polygraph test by a Georgia Bureau of

Investigation interviewer. Before beginning the polygraph examination, Freeman met

for a pre-interview session, during which he was administered a Miranda4 waiver,

which he signed. During the pre-interview, Freeman told the GBI interviewer that he

put a bag over Nelson’s head and hit her twice with a hammer. He explained that he

had only “roughed [her] up” for the purpose of scaring her so that she would not

continue to live alone. As a result of those statements, the polygraph test was never

administered, and the GBI agent immediately advised the police investigator of

Freeman’s statements. Freeman, the GBI agent, and the police investigator went to

a separate interview room where Freeman again told the investigator that he had

placed a bag over Nelson’s head and hit her in the head with a hammer. After that

interview, Freeman was formally arrested.



      4
          Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

                                          3
      Freeman was charged with aggravated assault, burglary, and attempted malice

murder. Following a trial, the jury found him guilty on all three counts, and the trial

court sentenced him on the burglary and attempted murder charges, merging the

aggravated assault charge into the attempted murder charge. Freeman moved for a

new trial, which motion was denied, giving rise to this appeal.

      1. Freeman contends that the trial court erred by admitting statements he made

to the police investigator immediately after his confession during the GBI pre-

interview for the polygraph test. Specifically, Freeman argues that he should have

been given an additional Miranda warning for purposes of the statement he made to

the police investigator. We disagree.

      The trial court addressed Freeman’s challenge to the statement during a

Jackson v. Denno5 hearing. “Unless clearly erroneous, a trial court’s findings as to

factual determinations and credibility relating to the admissibility of a defendant’s

statement at a Jackson v. Denno hearing will be upheld on appeal.”6 The record from

the hearing shows that Freeman was properly advised of his Miranda rights before



      5
          378 U. S. 368 (84 SCt 1774) (12 LE2d 908) (1964).
      6
          (Punctuation omitted.) Boynton v. State, 277 Ga. 130, 131 (3) (587 SE2d 3)
(2003).

                                          4
the pre-interview, there was no significant time gap between the two interviews, and

the second interview (during which the initial interviewer was present) was of a

similarly non-coercive nature, even if conducted in a different interview room. Thus,

“the lack of a Miranda warning after the break is of no consequence [because

Freeman] was informed of and waived his Miranda rights before the first interview

and the second interview was part of a continuous series of interviews.” 7 “Thus, it

cannot be said that the trial court erred in ruling that the [subsequent] statement was

admissible.” 8

      2. Freeman next argues that the trial court erred by admitting hearsay testimony

from the EMS worker who treated Nelson at the scene and told the jury what she said

about the attack. The record shows that the responding officer radioed for EMS

immediately upon discovering “Nelson on the floor at the end of her bed[,] . . .

covered in blood.” The challenged testimony came from the EMS worker who was



      7
         (Punctuation omitted.) Mangrum v. State, 285 Ga. 676, 678-679 (3) (681
SE2d 130) (2009) (addressing a two-hour break between interviews), citing Williams
v. State, 244 Ga. 485, 488 (4) (b) (260 SE2d 879) (1979) (“no duty to repeat the
Miranda warnings given the day before [because] the interviews were part of a
continuing interrogation”); Watson v. State, 227 Ga. 698, 700 (1) (182 SE2d 446)
(1971) (further warning not necessary after seven-hour lapse between statements).
      8
          Boynton, 277 Ga. at 131 (3).

                                          5
dispatched to the scene. He described Nelson as having a laceration to the top of her

head with some “obvious bleeding” that was under control by the time he arrived. As

he evaluated Nelson, the EMS worker “spoke with the patient just to do my initial

assessment . . . like I would do with every patient to find out . . . how she got her

injury and then . . . what happened during and so forth there with the injury[. S]he

was alert at the time and was able to answer all of our questions.” Over Freeman’s

objection, the EMS worker stated that when, as part of his treatment routine, he asked

Nelson how she was injured, she responded that “she had gotten up to go to the

bathroom and found someone in the house and they [sat on her,] had tried to smother

her, and put a bag over her head, and she was unaware of exactly how she got the

laceration to the top of the head.”

      Freeman objected to the testimony on the grounds that it was hearsay and a

violation of his constitutional right to confrontation under Crawford v. Washington.9

But the EMS worker

      was responsible for emergency medical diagnosis and treatment, to
      which the cause of the injury was relevant. Statements made for
      purposes of medical diagnosis or treatment and describing the inception
      or general character of the cause or external source thereof insofar as

      9
          541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004).

                                          6
      reasonably pertinent to diagnosis or treatment have long been admissible
      under [statutory hearsay exceptions] and continue to be admissible even
      after Crawford. . . . [Nelson’s] statement to the paramedic was made
      during his initial examination of her to ascertain the scope, diagnosis,
      and treatment of her injuries, and does not fall within any of the classes
      of testimonial statements described in Crawford.10


Therefore, under the circumstances of Nelson’s statements to the EMS worker, we

discern no error here.

      3. Freeman next argues that the trial court erred by denying his motion for a

mistrial made by his trial counsel upon learning that the State had access to real-time

court reporting via an Internet feed on a laptop at counsel’s table. The feed displayed

the text of the transcript as entered by the court reporter, and until 11:30 a.m. on the

third day of the four-day trial, Freeman’s counsel was unaware that it had been

available to the State and the court during trial.

      Freeman’s counsel objected, and during a bench conference it was established

that he was aware that the system existed, but had not requested it (nor was he aware



      10
         Hester v. State, 283 Ga. 367, 371-372 (4) (659 SE2d 600) (2008), quoting
Thomas v. State, 288 Ga. App. 602, 608 (3) (654 SE2d 682) (2007) (no error in
admitting hearsay statements “made to a nurse and doctor while they were examining
the victim to ascertain the scope, diagnosis, and treatment of his injuries.”).

                                           7
that it was readily available in that case).11 The State explained that it had referred to

the system only once to make a list of quickly-recited connections on the polygraph

apparatus that was not ultimately used in the case. No transcripts had been printed out

for the State’s use at any time. The trial court informed Freeman’s counsel how to

access the service over the local wireless network, and the trial continued, over

Freeman’s request for a mistrial.

      “The trial court exercises wide discretion in controlling and regulating the

business of the court, and appellate courts should never interfere with the exercise of

this discretion unless it is plainly apparent that wrong has resulted from the abuse.”12

It is apparent from the trial transcript that the service was available to Freeman’s trial

counsel had he requested access to it, the State had not concealed its use of it, and the

trial court was unaware that the State was using it and Freeman was not. Further,

Freeman’s counsel was able to see and hear everything in the courtroom, he was

immediately given access upon request, and he did not point to any specific harm that




      11
       Counsel’s prior experience with the real-time system involved a deaf client
for whom special arrangements had been made.
      12
           Williams v. State, 205 Ga. App. 445, 447 (3) (422 SE2d 309) (1992).

                                            8
occurred or any particular use he would have made of the real time transcript up to

that point. Under these circumstances, we discern no reversible error.13

      4. Freeman also asserts as error the trial court’s closure of the courtroom for

one witness’s testimony during his sentencing hearing.14 At the hearing, Freeman’s

counsel proffered that, as part of his mitigation defense, he would elicit testimony

from police that Freeman would offer substantial cooperation with ongoing criminal

investigations. The State did not want to impede open investigations by revealing

information about those investigations, so the State requested that the trial court

exclude the public during those witnesses’ testimony. Freeman’s counsel did not

object because he believed it would benefit his client to facilitate the law enforcement

testimony showing his client’s cooperation.

      Freeman now asserts that the trial court erred by closing the courtroom, but

because Freeman agreed to the closure, “the issue of closure may only be raised in the




      13
        See Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003)
(harm as well as error must be shown).
      14
        The trial court initially approved of courtroom closure for three witnesses,
but during the hearing the closure was limited to only one witness.

                                           9
context of an ineffective assistance of counsel claim.”15 This is because “[a] defendant

will not be allowed to induce an asserted error, sit silently hoping for acquittal, and

obtain a new trial when that tactic fails. Induced error is impermissible and furnishes

no ground for reversal.” 16 “[T]o hold otherwise would encourage defense counsel to

manipulate the justice system by intentionally failing to object [to closure] in order

to ensure an automatic reversal on appeal.”17




      15
         State v. Abernathy, 289 Ga. 603, 611 (5) (715 SE2d 48) (2011) (punctuation
omitted) (quoting Reid v. State, 286 Ga. 484, 487 (3) (c) (690 SE2d 177) (2010).
Freeman relies on R. W. Page Corp. v. Lumpkin, 249 Ga. 576 (292 SE2d 815) (1982),
for the proposition that motions to close the courtroom must be in writing and meet
other procedural safeguards. But that case relied on Code Ann. § 24-3363 of the 1933
Code which is no longer in effect, and it addressed a trial court ruling on a request by
news reporters to remain present in the courtroom during a suppression hearing. See
id. at 580 (5). The reversal in R.W. Page Corp. was therefore limited to the trial
court’s ruling on the reporters’ requests to be present, and it did not address the
underlying criminal conviction of the defendant.
      16
       (Punctuation omitted.) Anthony v. State, 275 Ga. App. 274, 278-279 (5) (620
SE2d 491) (2005).
      17
          Reid, 286 Ga. at 488 (3) (c). See also Grant v. State, 295 Ga. 126, 128 (3)
(757 SE2d 831) (2014) (“Appellant’s claim that the trial court erred by closing the
courtroom to inquire whether the State had made a deal with a witness has not been
preserved for appeal because no objection to the closure was made at trial.”); Benson
v. State, 294 Ga. 618 (2) (754 SE2d 23) (2014) (Appellant’s family members were
improperly excluded from voir dire but because “[a]ppellant . . . did not object to the
closure at trial[, he was] procedurally barred from raising the issue on appeal.”).

                                          10
       Despite this waiver, the dissent argues that the courtroom’s closure requires

reversal, emphasizing the importance of a public trial. But this precise concern was

addressed in State v. Abernathy, in which the Supreme Court of Georgia explained

that (1) “the right to public trial may give way in certain cases to other rights or

interests, such as the defendant’s right to a fair trial,”18 and (2) the defendant’s failure

to object waived appellate consideration of the issue outside of a claim for ineffective

assistance of counsel, which is not presented in this enumeration.19

       Nevertheless, in the present case, it is clear that the trial court held a hearing

on the record in which it considered the least intrusive way to protect Freeman’s

interests in presenting mitigation evidence without hindering the State’s ongoing

criminal investigation.20 The trial court carefully considered alternatives to the

temporary closure as well as ways to limit closure to only certain witnesses’

testimony.21 The court made explicit findings on the record and identified the



       18
            (Punctuation omitted.) 289 Ga. at 611 (5).
       19
            See id. Freeman’s ineffective assistance claim is addressed in Division 6 (c).
       20
        See, e.g., Presley v. Georgia, 558 U. S. 209, 214 (130 SCt 721; 175 LE2d
675) (2010).
       21
            See id.

                                             11
overriding nature of Freeman’s due process interest and the State’s interest in

protecting sensitive information involved in the criminal investigation.22 The parties

proffered specific facts supporting the trial court’s findings and exercise of discretion.

The closure was narrowly tailored to a single witness, and the courtroom was

promptly reopened after the relevant evidence was presented; there is no indication

that the full transcript of the sentencing was ever withheld from anyone seeking it.

Under these circumstances, and in light of Freeman’s waiver, we discern no basis for

reversal on the enumerated ground.

       5. Freeman also challenges the trial court’s failure to sentence him as a first

offender under OCGA § 42-8-60 et seq. “[W]hether or not to sentence a defendant

under the first offender statute lies entirely within the discretion of the trial court.”23

Absent some erroneous belief on the part of the trial court that the law does not

permit first offender treatment, we presume the trial court “acted properly in imposing

the sentence.”24




       22
            See id.
       23
            (Citation omitted.) Tew v. State, 320 Ga. App. 127 (739 SE2d 423) (2013).
       24
            (Punctuation omitted.) Id. at 128.

                                            12
      Here, although Freeman did not request first offender treatment, it is apparent

from the record that the trial court knew of Freeman’s lack of criminal convictions

but nevertheless sentenced him to 30 years (to serve ten) and 20 years consecutive on

probation. The trial court’s sentencing shows that it found the nature of the crime to

be severe, and the court gave no indication that it felt constrained to ignore the

potential for first-offender sentencing. Further, we note that Freeman was found

guilty of attempting to commit malice murder, a serious violent felony that, if

completed, is ineligible for first offender treatment.25 Pretermitting whether an

unsuccessful murder should be treated differently than a successful one for first

offender purposes, the conduct here was of a sufficiently serious nature that we

discern no abuse of discretion on the part of the trial court for failing to sentence

Freeman as a first offender.

      6. Freeman argues that his trial counsel was ineffective in several ways. Under

Strickland v. Washington,26 to succeed on an ineffective assistance claim, a criminal

defendant must demonstrate both that his trial counsel’s performance was deficient



      25
          See OCGA §§ 42-8-60 (d) (1) (first offender statute); 17-10-6.1 (a) (1)
(listing serious violent felonies); 16-5-1 (a) (defining malice murder).
      26
           466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

                                         13
and that there is a reasonable probability that the trial result would have been

different if not for the deficient performance.27 “There is a strong presumption that

the performance of trial counsel falls within the wide range of reasonable professional

assistance. The reasonableness of the conduct is viewed at the time of trial and under

the circumstances of the case.”28 If an appellant fails to meet his burden of proving

either prong of the Strickland test, the reviewing court need not examine the other

prong.29 In reviewing the trial court’s decision, “[w]e accept the trial court’s factual

findings and credibility determinations unless clearly erroneous, but we

independently apply the legal principles to the facts.”30

      (a) Failure to present closing argument at the Jackson-Denno hearing.

Freeman points to his trial counsel’s decision, at the conclusion of the testimony

adduced at the Jackson-Denno hearing, to rest on the evidence “in this specific



      27
           See id. at 687-688, 694 (III) (A)-(B).
      28
       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6)
(596 SE2d 597) (2004).
      29
        See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507
(3) (591 SE2d 782) (2004).
      30
           (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313)
(2003).

                                           14
situation,” and not present argument. The State elected to do the same. The transcript

shows that Freeman’s trial counsel had vigorously cross-examined the State’s witness

with probative and leading questions, revealing inconsistencies and challenging their

answers. Trial counsel’s questioning laid a clear foundation to support his theory that

Freeman’s statements were the product of improper interrogation, and he was not

sufficiently Mirandized. Trial counsel’s approach is in line with the common and

reasonable tactic to perfect the record and not use further court time to make an

argument that has become obvious through counsel’s questioning. As such, in the

absence of any showing that counsel’s tactic was unreasonable or inadvertent,

waiving argument at the hearing in this case affords no basis for reversal. “Trial

tactics and strategy, no matter how mistaken in hindsight, are almost never adequate

grounds for finding trial counsel ineffective unless they are so patently unreasonable

that no competent attorney would have chosen them.”31

      (b) Failure to object to certain statements. Freeman argues that his trial counsel

should have objected on hearsay grounds to portions of a recorded police interview

as well as testimony by an officer regarding Nelson’s account of the shirt color (either


      31
        (Punctuation omitted.) Welch v. State, 318 Ga. App. 202, 207 (2) (733 SE2d
482) (2012).

                                          15
orange or yellow) of her assailant. With respect to the recorded interview, trial

counsel had unsuccessfully attempted to exclude the interview during the Jackson v.

Denno hearing. In light of that ruling, counsel elected to have the entire interview

admitted rather than redact it, as part of a trial strategy to point out inconsistencies as

to the assailant’s shirt color. Trial counsel further highlighted the inconsistencies in

his closing argument. With respect to statements by the officer regarding shirt color,

Freeman does not identify the particular objectionable testimony, but these statements

would have been subject to the same trial strategy employed by trial counsel.

      Furthermore, alleged discrepancies about the shirt color of the assailant were

overwhelmed by the other evidence of guilt. After being given a Miranda warning,

Freeman twice volunteered to investigators that he put a bag over Nelson’s head and

hit her in the head with a hammer. Based on the record before us, we discern no

reversible error predicated on the effectiveness of trial counsel with respect to the

challenged testimony.32


      32
         See Rice v. State, 292 Ga. 191, 210-211 (9) (f) (733 SE2d 755) (2012)
(holding that, even assuming that trial counsel performed deficiently by failing to
make an objection, the defendant’s ineffective assistance claim failed because there
was no prejudice due, in part, to the overwhelming evidence of his guilt). See also
Boyd v. State, 286 Ga. 166, 168 (2) (686 SE2d 109) (2009) (overwhelming evidence
can render harmless a Crawford violation arising from the admission of hearsay).

                                            16
      (c) Consenting to close the courtroom during sentencing. Freeman also argues

that his trial counsel performed deficiently by consenting to closing the courtroom

during sentencing. But, as noted in Division 4, this decision was a strategic one

designed to allow mitigation evidence during sentencing. Prior to sentencing, trial

counsel stated that he believed that law enforcement witnesses would be more

forthcoming if the courtroom were closed. In light of this reasonable strategic

decision, and in light of any showing of harm, Freeman has failed to meet his burden

under Strickland.33

      (d) Failure to request first offender sentencing. Finally, Freeman argues that

his trial counsel should have requested sentencing under the first offender statute. But

the record shows no inclination by the trial court to allow first offender status in light

of the nature of the offenses Freeman committed. Nor was there evidence that the trial

court was constrained to impose the sentence Freeman received. To the contrary, the

      33
         See Muse v. State, 293 Ga. 647, 651 (2) (a) (748 SE2d 904) (2013)
(Addressing a temporary courtroom closure during voir dire on jury members’
experience with sensitive sexual topics, “[w]e cannot say that it was unreasonable for
the lawyer to think that closing the courtroom might facilitate his efforts to [obtain
a favorable jury composition], and Appellant has failed, therefore, to overcome the
strong presumption that the failure of her lawyer to object to the closing was a
reasonable trial strategy.”); Abernathy, 289 Ga. at 611 (5) (“Given that the [closure]
was designed with the express purpose of maximizing the odds of . . . a fair trial, [the
defendant] cannot make” the required showing of harm.).

                                           17
trial court noted Freeman’s lack of a criminal record and that it could have sentenced

Freeman from one to thirty years for the attempted murder count. Nevertheless, after

recounting on the record Freeman’s use of a hammer, Nelson’s fractured scull, staples

“all up her head,” the pool of blood, and Nelson’s fear that she was going to be

suffocated, the trial court imposed a sentence of 30 years with 10 to serve.

      Pursuant to Strickland, Freeman must offer more than speculation that the trial

court would have sentenced him as a first offender.34 In light of the record before us,

Freeman has not meet this burden.35

      Judgment affirmed. Andrews, P. J., Dillard and McMillian, JJ., concur.

Phipps, C. J., Ellington, P. J., and Miller, J., concur in part and dissent in part.




      34
           See, e.g., Valentine v. State, 293 Ga. 533, 537 (3) (748 SE2d 437) (2013).
      35
        See generally Humphrey v. Walker, 294 Ga. 855, 860 (II) (A) (757 SE2d 68)
(2014) (“[T]o show prejudice, the errors of counsel must be so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”) (punctuation omitted).

                                           18
 A14A0610. FREEMAN v. THE STATE.



      MILLER, Judge, concurring in part and dissenting in part.

      While I agree with Divisions 1, 2, 3, 5, and 6 of the majority opinion, I cannot

agree with the majority’s opinion as to Division 4. The Constitution of the State of

Georgia mandates that “[i]n criminal cases, the defendant shall have a public and

speedy trial by an impartial jury.” (Emphasis added.) Ga. Const. of 1983, Art. 1, Sec.

1, Par. XI (a). The First and Sixth Amendments to the Constitution of the United

States also guarantee the right to a public trial. U. S. Const. Amend. 1; U.S. Const.

Amend. 6; Presley v. Georgia, 558 U. S. 209, 212 (130 SCt 721, 175 LE2d 675)

(2010). Federal courts have held that the First and Sixth Amendment rights to a

public trial attach to sentencing proceedings. See, e.g.,United States v. Thompson,

713 F3d 388, 393-394 (II) (8th Cir. 2013); United States v. Rivera, 682 F3d 1223,

1228-1229 (II) (B) (1) (9th Cir. 2012).
      That is what we have here. Freeman was tried and convicted by a jury in open

court, and then the State moved to close the courtroom for a portion of the sentencing

proceedings. Freeman agreed to the closure. While Freeman may have waived his

Sixth Amendment right to a hearing in open court by acquiescing in the State’s

request, a defendant cannot waive the public’s interest in being present for the

sentencing portion of the trial. See Rivera, supra, 682 F3d at 1228 (II) (B) (1)

(recognizing that the “judge and prosecutor continue to bear grave responsibilities,

both to the accused and to the broader community, during sentencing proceedings”)

(emphasis supplied).

      Courtrooms in Georgia have too often been closed, and there are only rare

circumstances in which a trial court may conduct proceedings outside the presence

of the public. See Presley, supra, 558 U. S. at 213; Judicial Qualifications

Commission, Opinion No. 239. While “[t]he right to an open trial may give way in

certain cases to other rights and interests, such as the defendant’s right to a fair trial

or the government’s interest in inhibiting disclosure of sensitive information[,] . . .

[s]uch circumstances will be rare . . . and the balance of interests must be struck with

special care.” (Citation omitted; emphasis added.) Presley, supra, 558 U. S. at 213.

Before a trial court can exclude the public from any stage of a criminal trial,


                                            2
      [t]he party seeking to close the hearing must advance 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.


(Citation and punctuation omitted.) Id. at 214.

      In this case, the State did not advance an overriding interest that compelled the

courtroom to be closed. Notably, in requesting that the courtroom be closed, the State

merely stated that it expected to present evidence regarding open Georgia Bureau of

Investigations (GBI) cases and that this “evidence if presented in open court may

prejudice those investigations.” (Emphasis added.) The State then called a GBI officer

who testified that Freeman cooperated in certain investigations, but that his assistance

did not yield any valuable information.1 The officer’s testimony did not disclose any

sensitive information that could have possibly jeopardized any pending cases, and the

State did not present any evidence that the pending cases required any additional

investigation. There were other reasonable alternatives available, as the State could

have established in open court that Freeman was cooperative but ultimately unhelpful.



      1
       Although the trial court initially ordered the courtroom to be closed for other
witnesses as well, the record shows that the trial judge opened the courtroom after the
GBI officer testified.

                                           3
       Simply arguing that evidence may be related to a pending investigation does

not satisfy the State’s burden of establishing an overriding interest. If we were to hold

otherwise, a trial court would be authorized to close a courtroom based on conjecture.

Trial judges are the keepers of the courtroom, entrusted with serious responsibilities

to the parties and to the public at large. Maintaining public access serves to guarantee

the fairness of trials because it provides an opportunity for public scrutiny upon the

administration of justice See Munoz v. American Lawyer Media, L.P., 236 Ga. App.

462, 464 (1) (a) (512 SE2d 347) (1999) (recognizing that the news media serves to

guarantee the fairness of trials and to bring to bear the beneficial effects of public

scrutiny upon the administration of justice in both civil and criminal cases).

       Closing courtrooms is the exception, not the rule, and, even where the parties

request closure, the trial court must protect the public’s constitutional right to access

and limit such access only when vitally necessary. See Presley, supra, 558 U.S. at

212-213; Judicial Qualifications Commission, Opinion No. 239. Where, as here, the

trial court unnecessarily closes the courtroom, the public’s trust and confidence in

judicial proceedings is eroded. For this reason, I dissent.

       I am authorized to state that Chief Judge Phipps and Presiding Judge Ellington

join in this dissent.


                                           4
