O.C.G.A. § 17-8-54 (2019)

Annotations

Editor’s notes. - Former Code Sec-

tion 17-8-54, which related to writing out and reading of the charge to the jury, was redesignated as Code Section 17-8-56 by Ga. L. 1985, p. 1190, § 1.

JUDICIAL DECISIONS Purpose of section. - Court properly refused to clear courtroom of unnecessary persons when the defendant accused a courtroom observer of coaching the witness; the purpose of O.C.G.A. §§ 17-8-54 and 17-8-55 is to protect the interest of the child witness and the record showed the witness’ testimony was not influenced by any spectator. Martin v. State, 205 Ga. App. 591, 422 S.E.2d 876, cert. denied, 205 Ga. App. 900, 422 S.E.2d 876 (1992). Closure of courtroom must be supported by specific findings. - Although the trial court cursorily mentioned protecting the minor victim’s privacy, the trial court’s findings must be specific

enough that a reviewing court can determine whether the closure order was properly entered and the trial court’s conclusory statement that the court had considered the alternatives to closure and found the alternatives to be insufficient under the circumstances of the case was not specific enough to enable the court to determine that the closure order was entered properly. Spikes v. State, 353 Ga. App. 454, 838 S.E.2d 121 (2020). Allowing child victim’s psychologist to remain in court not error. - With regard to a defendant’s trial and conviction on various child sexual abuse charges, the trial court did not violate

O.C.G.A. § 17-8-54 as a result of clearing the courtroom of all spectators, with the exception of the victim’s psychologist, who remained in the courtroom during the testimony, when the child testified, as there was no evidence in the record that the psychologist improperly influenced the testimony of the victim and, consequently, the defendant failed to assert a valid basis for reversal. Further, the purpose of § 17-8-54 is to protect the interest of the child witness, not the defendant; thus, a failure to follow the statute did not violate the defendant’s rights. Driggers v. State, 295 Ga. App. 711, 673 S.E.2d 95 (2009). Allowing child advocate to sit with child. - Trial court did not err in allowing a victim’s advocate to accompany the victim to the witness stand and sit by the victim in front of the jury while the victim testified because the trial court carefully observed the advocate’s presence and demeanor during the victim’s testimony and saw no inappropriate or prejudicial conduct or behavior. Ford v. State, 322 Ga. App. 31, 743 S.E.2d 442 (2013). Prejudice not shown. - Defendant failed to demonstrate how the clearing of two of defendant’s relatives from the courtroom when ‘‘everybody was made to leave the courtroom who was not an officer’’ prejudiced the defendant’s cause or resulted in a different outcome at trial. Turner v. State, 245 Ga. App. 294, 536 S.E.2d 814 (2000), overruled on other grounds, Miller v. State, 285 Ga. 285, 676 S.E.2d 173 (2009). Defendant failed to show that the trial court violated the defendant’s right to a public trial after the court cleared the courtroom of nonessential personnel when the youngest victim, who was four years old, testified because the defendant did not identify any specific people or category of people that were wrongly evicted. Clark v. State, 309 Ga. App. 749, 711 S.E.2d 339 (2011). Failure to object. - When the defendant was charged with, inter alia, child molestation, and the trial court, pursuant to O.C.G.A. § 17-8-54, excluded certain individuals from the courtroom when the victims testified, including members of the defendant’s immediate family, the de-

fendant waived the defendant’s appellate argument that this was, in effect, a total closure of the courtroom because the defendant did not object when the defendant’s family members were excluded. Hunt v. State, 268 Ga. App. 568, 602 S.E.2d 312 (2004). Because the defendant failed to object to the exclusion of the defendant’s parents from the courtroom, and the failure did not amount to plain error, the appeals court rejected the defendant’s contentions on appeal that O.C.G.A. § 17-8-54 was violated as was the defendant’s right to public trial; moreover, the appeals court declined to extend the plain error doctrine to the instant facts. Delgado v. State, 287 Ga. App. 273, 651 S.E.2d 201 (2007). Defendant waived any challenge to the trial court’s exclusion of the defendant’s family during the victim’s testimony by failing to object. Waiver aside, the challenge lacked merit, as the defendant could not show the alleged error harmed the defendant. Davis v. State, 323 Ga. App. 266, 746 S.E.2d 890 (2013). Closed proceedings proper. - Trial court did not violate the defendant’s Sixth Amendment right to a public trial by closing the child molestation proceedings for the child victim’s testimony; O.C.G.A. § 17-8-54 permitted partial closure of the court room when a person under the age of 16 testified about a sex offense; the victim, age seven, was testifying about a sex offense, and § 17-8-54 did not violate the Sixth Amendment. Goldstein v. State, 283 Ga. App. 1, 640 S.E.2d 599 (2006), cert. denied, No. S07C0623, 2007 Ga. LEXIS 338 (Ga. 2007). Trial court did not abuse the court’s discretion by partially closing the courtroom during the victims’ testimonies because the trial court limited the closure by allowing the defendant, the attorneys for the defense and the state, immediate families or guardians of the victims, immediate families or guardians of the defendant, the attorneys’ employees, officers of the court, sheriff ’s deputies, and any members of the press to remain in the courtroom, which was acceptable pursuant to the Sixth Amendment. Pate v. State, 315 Ga. App. 205, 726 S.E.2d 691 (2012), cert. denied, No. S12C1308, 2012 Ga. LEXIS

1027 (Ga. 2012), appeal dismissed, 2020 U.S. App. LEXIS 3372 (11th Cir. Ga. 2020). Trial court properly cleared the courtroom while the two minor victims testified at the defendant’s trial for child molestation as O.C.G.A. § 17-8-54 authorized the trial court to clear the courtroom and, to the extent the trial court improperly required persons excepted from § 17-8-54 to leave as well, the defendant waived appellate review by not objecting. Tolbert v. State, 321 Ga. App. 637, 742 S.E.2d 152 (2013). Waiver of constitutionality argument. - By failing to challenge the constitutionality of O.C.G.A. § 17-8-54 until after the child victim testified, the defendant waived the right to argue on appeal that the statute violated the defendant’s

constitutional right to a public trial. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921 (2008), cert. denied, No. S08C1939, 2008 Ga. LEXIS 935 (Ga. 2008). Harmless error. - Although the trial court violated O.C.G.A. § 17-8-54 in removing the defendant’s immediate family from the courtroom while the victim testified, the error was harmless. Other evidence, including testimony by the victim’s family members, a pediatrician, a child protective services worker, a nurse, and a psychotherapist, supported the conviction. Craven v. State, 292 Ga. App. 592, 664 S.E.2d 921 (2008), cert. denied, No. S08C1939, 2008 Ga. LEXIS 935 (Ga. 2008). Cited in Donaldson v. State, 255 Ga. App. 451, 565 S.E.2d 486 (2002).

RESEARCH REFERENCES ALR. - Determination of request for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer - issues of proof, consideration of alternatives, and scope of closure, 32 A.L.R.6th 171.

Basis for exclusion of public from state criminal trial in order to preserve safety, confidentiality, or well-being of witness who is not undercover police officer, 33 A.L.R.6th 1.