Perry v. State , 216 Ga. App. 749 ( 1995 )

Smith, Judge.

Aaron Perry and Carlton Hunter were indicted and convicted by a jury of kidnapping, OCGA § 16-5-40, and armed robbery, OCGA § 16-8-41.¹ Their motions for new trial were denied, and they appeal.

1. Perry and Hunter enumerate as error the conduct of the trial court in removing them from the courtroom during the testimony of three rebuttal witnesses for the State. Out of the presence of the jury, the prosecutor informed the trial court that the witnesses were afraid to testify and feared for their lives. The trial court agreed to speak with the witnesses. Counsel for appellants objected to proceedings taking place out of the presence of their clients. The trial court overruled the objections and ordered appellants removed from the courtroom while the witnesses were examined.

Contrary to the dissent’s contention, the proceedings which took place while appellants were excluded clearly were not “a conference in chambers dealing solely with questions of law.” Three witnesses gave testimony out of the presence of the jury on the rebuttal issues for which the State had called them, primarily concerning the alibi of appellants’ co-defendant and communications with his attorney. This testimony was lengthy and, according to counsel for appellant Hunter, lasted almost three hours. However, only two of the witnesses testified with respect to any fear for their lives; both testified that no threats had been made against them and they were not fearful of the defendants, but rather were uneasy about testifying and about the judicial process in general. Two of the witnesses later testified before the jury to essentially the same substantive matters to which they testified earlier before the trial court. This was clearly not a “conference” on a “question of law,” but testimony given by three witnesses for the State.

The trial court erred in removing appellants from the courtroom, over objection, while witnesses testified for the State in a criminal prosecution. This is, on its face, a violation of appellants’ rights under the confrontation clauses of the Georgia and United States Constitutions, as well as their right to be present at their trial under Ga. Const. 1983, Art. I, Sec. I, Par. XII. “ ‘The accused and his counsel have the right to be present at every stage of the proceedings and personally see and know what is being done in the case. To say that no injury results when it appears that what occurred in their absence was regular and legal would, in effect, practically do away with this great and important right, one element of which is to see to it that what does take place is in accord with law and good practice.’ [Cits.]” Wilson v. State, 212 Ga. 73, 74-75 (90 SE2d 557) (1955) (new trial granted where defendant absent for portion of the State’s closing argument; counsel for defendant could not waive defendant’s presence without acquiescence). “We think that the right to be present at all stages of the trial ranks among the defendant’s most substantial rights. It ranks next in importance to, if not on a par with, his right to be presumed to be innocent until proved guilty . . . ‘The presence of counsel was no substitute for that of the [men] on trial. [Perry and Hunter] should have been present.’ [Cit.]” Pierce v. State, 47 Ga. App. 830, 831 (171 SE 731) (1933) (reversible error in failing to grant mistrial where defendant absent for portion of the State’s closing argument).

Appellants’ right to be present even during argument of counsel is unquestioned; certainly appellants had the right to be present while witnesses testified against them. Even if that testimony was ostensibly in the nature of a proffer, that does not transform those proceedings into a “conference,” as the dissent contends. The presence of the accused during actual testimony is crucial; he may identify inconsistencies or other problems in a witness’s testimony which are unknown to his attorney and may guide his attorney in effective cross-examination.

The cases cited by the dissent do not provide authority for this unprecedented and drastic curtailment of the right of confrontation. In Wanzer v. State, 232 Ga. 523, 526 (207 SE2d 466) (1974), appellant’s counsel initiated a motion for mistrial in the trial judge’s chambers without requesting the presence of his client, who was in the next room when the motion was made. However, appellant was present in the courtroom during the questioning of the jurors in connection with the motion. The Georgia Supreme Court held that under the particular facts presented the trial court did not err in denying the motion for mistrial. In Ortiz v. State, 188 Ga. App. 532, 535 (2) (374 SE2d 92) (1988), we approved the practice of allowing victims in child molestation cases to testify from a chair placed at an angle, so that they need not stare directly at the accused while testifying. However, the child victim in that case remained in full view and hearing of the accused, the court, and the jury. In Andrews v. State, 196 Ga. 84, 94 (26 SE2d 263) (1943), court-appointed counsel requested dismissal by the trial court in the presence of and with the consent of defendant’s retained counsel. The Georgia Supreme Court held that the trial court’s action in releasing appointed counsel, which the court described as “a gratuity to which the defendant had no right,” id., was not reversible error. In Gray v. State, 229 Ga. 808 (194 SE2d 479) (1972), the trial court belatedly realized the defendant was returning from lunch or a cigarette break as the district attorney began administering the oath to the jury. The trial judge immediately stopped the proceedings and reswore the jury in the defendant’s presence, and the Georgia Supreme Court held that “nothing occurred in the trial of the case in the absence of the appellant.” 229 Ga. at 809.²

None of these cases deals with the primary focus of appellants’ right of confrontation: to be present and observe the witnesses testifying against them. Moreover, the cases cited by the dissent involve either an inadvertent absence from the courtroom or action initiated by defense counsel in his client’s absence. Here, the trial court itself acted to deprive appellants of “this great and important right,” over the objection of counsel.

We do not foreclose the possibility that other circumstances might warrant an inquiry into real and verifiable threats against a witness or require further action on the trial court’s part. However, it is undisputed that the witnesses here, when examined on the point, testified that no threats had been made against them and they were not in actual fear for their lives. What inquiries may be necessary and what remedies may be crafted to protect a witness from the threat of imminent physical harm, we reserve for decision when that issue is squarely presented. In this instance, however, the trial court erred in barring appellants from the courtroom during the testimony of three witnesses for the State, and therefore a new trial is required.

2. Appellants’ remaining enumerations of error need not be addressed, as they involve matters unlikely to recur on retrial.

Judgment reversed.

Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ., concur. Beasley, C. J., concurs specially. McMurray, P. J., dissents.

1 A third defendant, Aaron Hunter, was convicted of armed robbery. In an earlier appeal, Aaron Hunter’s conviction was affirmed. Hunter v. State, Court of Appeals Case No. A94A1137 (June 23, 1994, unpublished). He did not raise the issue discussed here.

2 Frady v. State, 212 Ga. 84, 86 (90 SE2d 664) (1955), involves the question of cross-examination of the complaining witness in a rape prosecution before the enactment of the Rape Shield Statute, OCGA § 24-2-3. We fail to see its relevance here.