☢ test - Í

Purvis v. State, 288 Ga. 865, 708 S.E.2d 283 (March 18, 2011). Reversing 301 Ga.App. 648(3), 689 S.E.2d 53 (2009), 1. trial court violated defendant’s right to a public trial on his child molestation charge by conducting trial “in a courtroom in the county jail” to which defendant’s brother was denied admission by jail personnel. “The Sixth Amendment provides that ‘[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.’ The Sixth Amendment rights are applicable to the states. Kesler v. State , 249 Ga. 462, 471 fn. 5 (291 S.E.2d 497) (1982). The Constitution of Georgia also provides for a public trial for criminal defendants. Const. of Ga. 1983, Art. I, Sec. I, Par. XI (a). Georgia law ... regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law. [Cits.] ... [O]ur state constitution point-blankly states ‘that criminal trials shall be public. [Cit.] ... We see no friction between these state and federal constitutional provisions, properly interpreted, since the objectives of both are identical: access to judicial hearings for the public and fair trials for criminal defendants.’ (Footnote omitted; emphasis in original.) R.W. Page Corp. v. Lumpkin , 249 Ga. 576, 578-579 (3) (292 S.E.2d 815) (1982).” Situation is not helped by a) fact that others were allowed in the courtroom; b) “that the trial court itself did not specifically order the exclusion of appellant’s brother from the courtroom;” or c) “that appellant made no objection at trial. Because the record establishes that appellant was tried and convicted in one day, he could not have known that his brother, and possibly other members of the public, had been prevented from entering the jail courtroom during the trial so as to object to their exclusion.” Notes that the “Sixth Amendment right to a public trial, that right ‘may give way in certain cases to other rights or interests, such as the defendant's right to a fair trial or the government's interest in inhibiting disclosure of sensitive information. [Cit.]’ (Punctuation omitted.) Presley v. Georgia , [January 19, 2010, below], 130 S.Ct. at 724. However, as stated above, there is nothing in the record to explain why the trial court chose to hold appellant's trial in the jail courtroom, thereby causing the violation of appellant's right to a public trial.” 2. OCGA § 15-6-18(c) limits the court’s power to move a trial out of the county courthouse in counties with population under 50,000 “without the consent of the accused.” Nothing in the record shows that defendant here consented. Rejects State’s argument “that the mere absence of any objection by the accused … is sufficient to show compliance with OCGA § 15-6-18(c)(1).” Accord, Osborn v. State , 310 Ga.App. 856, 714 S.E.2d 406 (July 13, 2011) (aggravated assault and related convictions reversed; trial court violated OCGA 15-6-18 by conducting voir dire in a church due to a bomb threat). Gomez v. State, 305 Ga.App. 204, 699 S.E.2d 395 (July 13, 2010). Defendant’s convictions for kidnapping, armed robbery, and related offenses affirmed; defendant waived objection to closing the courtroom for his pre-trial motion hearing by failing to object to it. Trial court ordered “all unnecessary personnel” removed from courtroom for testimony of victim, who was allegedly sexually assaulted. “Gomez's counsel requested that Gomez's cousin, who was one of the only members of the family who spoke some English, be allowed to remain. The court granted the State's motion [to clear the courtroom] but denied Gomez's request and cleared the courtroom. [Victim] Herrera then took the stand but, unable to continue, she stepped down without testifying or even being asked a single question; she was never recalled to testify at the motion hearing. Agent Stacy Carson, who had questioned Herrera during the investigation and recorded the questioning, was then called to the stand. At this point, Gomez's counsel did not request that the cousin be allowed to return. Carson was then questioned on direct by the State. Without prompting from the defense, the court then gave permission for Gomez's cousin to return; this occurred prior to the playing of the tape of Herrera's interview. Gomez did not object or protest the fact that the cousin had missed Carson's direct testimony. Gomez then cross-examined Carson. A defendant is not required to show prejudice in this setting because the improper closing of a courtroom is a structural error; but reversal is required only where ‘the defendant properly objected at trial and raised the issue on direct appeal.’ Reid v. State, 286 Ga. 484, 488(3)(c) (690 S.E.2d 177) (2010). [fn: A defendant may waive his right to object on the ground that an order of exclusion denied him a public trial. Henderson v. State, 207 Ga. 206, 214(2) (60 S.E.2d 345) (1950). See also Peretz v. United States, 501 U.S. 923, 936(IV) (111 S.Ct. 2661, 115 L.Ed.2d 808) (1991) (‘failure to object to closing of courtroom is waiver of right to public trial’), citing Levine v. United States, 362 U.S. 610, 619 (80 S.Ct. 1038, 4 L.Ed.2d 989) (1960). ] Here, Gomez did not raise a ‘constitutional objection to the trial court's action after the State moved to clear the courtroom during the victim's testimony[, and he] did not argue then that clearing the courtroom of his relatives would violate his right to a public trial’; as such this objection was waived. Craven v. State, 292 Ga.App. 592, 594(1)(b) (664 S.E.2d 921) (2008).” Reid v. State, 286 Ga. 484, 690 S.E.2d 177 (February 8, 2010). Structural error – closing courtroom for victim’s testimony out of fear for his safety – was waived where defense counsel failed to object, citing Glover v. State, 292 Ga.App. 22, 26- 27(3) (663 S.E.2d 772) (2008). Hunstein dissents, citing Presley v. Georgia , 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (January 19, 2010) and noting trial court’s failure to consider alternatives to closure. Accord, Martinez v. State , 318 Ga.App. 254, 735 S.E.2d 785 (October 29, 2012); Lane v. State , 324 Ga.App. 303, 750 S.E.2d 381 (October 23, 2013). Presley v. Georgia, 558 U.S. 209, 130 S.Ct. 721, 175 L.Ed.2d 675 (January 19, 2010). Reversing 285 Ga. 270, 674 S.E.2d