author: Adams, Judge. BLACKWELL, Judge,

text:
    A11A2381.
    BOYD v. THE STATE.
    (726 SE2d 746)
   Adams, Judge.

Darrell Emmanuel Boyd, Jr., was convicted by a jury of armed robbery, possession of a firearm during the commission of a felony and violating the Georgia Firearms and Weapons Act by possession of a sawed-off shotgun; he was sentenced to 20 years to serve 12. He appeals following the denial of his motion for new trial, arguing that the trial court erred by admitting his in-custody statement into evidence at trial and by admitting show-up identification testimony.

1. Boyd first argues that the trial court erred by finding that he knowingly and voluntarily waived his constitutional right to self-incrimination so as to authorize the admission of his in-custody incriminating statement. We agree and reverse.

Although the State had the burden of proving the admissibility of the incriminating statement by a preponderance of the evidence,

[confessions of juveniles must be scanned with more care and received with greater caution than those of adults. Crawford v. State, 240 Ga. 321, 323 (1) (240 SE2d 824) (1977). (T)he question of a voluntary and knowing waiver depends on the totality of the circumstances(,) and the (S)tate has a heavy burden in showing that the juvenile did understand and waive his rights. ... Id.

(Punctuation omitted.) Swain v. State, 285 Ga. App. 550, 551-552 (647 SE2d 88) (2007). E.g., Nelson v. State, 289 Ga. App. 326, 328 (1) (657 SE2d 263) (2008).

However, as our Supreme Court has further explained, “age alone is not determinative of whether a person can waive his rights. Instead, the question of waiver must be analyzed by a consideration of several factors.” Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). Those factors include

(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge . . . and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8)whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

Id.

On appeal, we accept the trial court’s findings on disputed facts and credibility issues unless clearly erroneous. Norris v. State, 282 Ga. 430, 431 (2) (651 SE2d 40) (2007); State v. Rodriguez, 274 Ga. 728 (559 SE2d 435) (2002). “However, (w)here controlling facts are not in dispute, . . . such as those facts discernible from a videotape, our review is de novo. (Cit.)” (Citation and punctuation omitted.) Sosniak v. State, 287 Ga. 279, 280 (1) (695 SE2d 604) (2010) (involved both conflicting testimony at suppression hearing and videotaped interviews). Vergara v. State, 283 Ga. 175, 178 (657 SE2d 863) (2008); State v. Brown, 308 Ga. App. 480, 482 (708 SE2d 63) (2011); State v. Roberts, 273 Ga. 514, 514-515 (1) (543 SE2d 725) (2001), overruled on other grounds by Vergara, 283 Ga. at 178 (1) (videotape of an interrogation viewed as “demonstrative objective proof of the circumstances surrounding [an] inculpatory statement”). In any event, we independently apply the legal principles to the facts.

Turning to the facts here, the record and transcripts show that Boyd was 15 years old and in the ninth grade at the time he was interviewed. Boyd was arrested and taken into custody within hours of the crime, after he had been identified by the victim as the person who brandished the sawed-off shotgun during the robbery. He was handcuffed and placed alone in an interview room; the recording equipment was activated at approximately 2:08 a.m., and the officer conducting the interview, Corporal Eric Osterberg, began interviewing Boyd at about 2:20 a.m.

Osterberg began by asking Boyd general background questions, and Boyd could not tell the officer his street address or whether he lived in Norcross or Lilburn, but described generally for the officer where his home was located. He gave the officer his mother’s cell phone number, but said he did not live with his mother and that she lived in College Park. He told the officer he lived with his father, gave the officer his father’s cell phone number, and said his father “should be” home at that time.

Osterberg then told Boyd he was going to read him his Miranda rights as if Boyd was reading them to himself; in other words, Osterberg read Boyd his rights, using a form which was intended to be read by the suspect, in the first person singular, using the pronoun “I,” instead of using the pronoun “you.”

Osterberg then asked Boyd if he understood his rights, and Boyd gave a slight nod of his head; Osterberg asked Boyd if he had any questions, and Boyd indicated he did not by a slight shake of his head, again giving a slight nod of his head when Osterberg asked him if he understood his rights fully. Osterberg then asked Boyd if he was ready, “with those rights in mind, ... to go ahead and continue this interview and kind of straighten out what in the hell happened this evening.” Boyd did not respond, and Osterberg queried “Understand?” and Boyd slightly nodded his assent. Osterberg then asked Boyd again whether he wanted to go ahead and get it straightened out now, and Boyd hesitated and then responded “Yeah.”

Osterberg proceeded to question Boyd about the events of that night. While pressing Boyd about who owned the gun used during the robbery, Boyd stated he did not know but then blurted out that “he did it though,” meaning he was the one who held it during the robbery. Boyd also mentioned several times in the interview that the gun was not loaded.

Placing these facts in the context of the Riley factors, we note first that Boyd was only 15 years old and in the ninth grade and, for whatever reason, could not provide the officer with certain details such as his street address. The interview did not start until almost 2:30 a.m., and Osterberg acknowledged that Boyd appeared tired but said Boyd was not so tired that he lost track of what was going on during the interview. It does not appear that Osterberg asked Boyd if he wanted anything to drink before he began the interview, and when the interview was over Boyd immediately asked for something to drink.

The recording further reveals that Boyd gave Osterberg the necessary contact information for his parents and Osterberg stated at the hearing that he thought one of the other officers may have tried to contact Boyd’s father, but Osterberg did not mention that fact to Boyd or ask him if he wanted to wait until his father had been reached before proceeding with the interview. As our Supreme Court has held, “[a] parent’s presence... is a significant factor in support of a finding of waiver,” Norris, 282 Ga. App. at 431 (2), although it is equally true that a parent’s presence is not required and that we do not have a per se rule that such statements should be excluded. Further, although Osterberg informed Boyd of his rights, including his right to have a parent or attorney present, these rights were unnecessarily read in a way that might have confused an adult, much less a 15-year-old being interviewed at 2:30 a.m. And although Boyd did acknowledge understanding his rights, he did so using minimal head gestures, even though up to that point he had been verbalizing his responses to the officer.

While the above circumstances might give us cause to question whether the waiver of rights here was knowingly and intelligently made, it is the next part of the interview, coupled with these circumstances, that leads us to conclude that Boyd’s statement should not have been admitted at trial. At this juncture of the interview Boyd had been arrested but not charged, and more importantly, Osterberg had not revealed to Boyd that he might be charged with serious felony offenses, such as armed robbery and various weapons violations, before the officer entreated him to “straighten out what in the hell happened this evening.” When Boyd did not immediately respond, Osterberg pressed Boyd to go ahead and “get it straightened out now.” Boyd continued to hesitate, but then responded “Yeah.” As our Supreme Court has noted “the method that police used in the interrogation, including whether they made threats or promises, is a significant factor in evaluating the voluntariness of the waiver ....” Rodriguez, 274 Ga. at 729. Osterberg’s statement, while not an outright promise, could easily have caused a juvenile offender, uninformed about what serious charges he might be facing, and knowing that the shotgun was not loaded, to believe that the situation could be “straightened out” if he talked to the officer. Further, it is apparent Osterberg knew prior to starting the interview that Boyd was going to be charged whether he talked to him or not since the victim had already identified Boyd as the person who brandished the shotgun during the robbery. And although this method of interrogation may be permissible, particularly when interviewing an adult, we believe these methods may be ill-advised when interviewing a juvenile, in light of the additional scrutiny to which these procedures must be subjected. This is particularly true where, as here, the juvenile was interrogated without the aid of an attorney or a parent, and without being advised of the very serious charges he could be facing. Cf. Allen v. State, 283 Ga. 304, 305 (2) (a) (658 SE2d 580) (2008) (15-year-old was directly asked concerning whether he wanted his mother present, not just advised he could have her present, and juvenile was told that he was under arrest for murder and was going to be held at a juvenile detention center whether he talked to them or not); Norris, 282 Ga. at 431-432 (2) (trial court did not err by finding knowing and voluntary waiver of rights when interview conducted at 3:30 a.m., juvenile had access to food, drink and a restroom, juvenile’s parent was present for the entire interview, and the mother was told the juvenile was a suspect prior to the interview).

Based on the foregoing, and considering the totality of the circumstances, we cannot agree with the trial court that the State met its burden of showing that the statement here was made voluntarily after a knowing and intelligent waiver of rights. Although it would be easy to find otherwise if we ended our analysis at the point where Boyd gave an affirmative indication that he understood and waived his rights, such a result would, in our opinion, mean that only mere lip service need be paid to consideration of the factors that are relevant in determining the admissibility of an in-custody statement of a juvenile. As the United States Supreme Court recently explained in finding that age is a factor in determining whether a juvenile is in custody for purposes of Miranda:

A child’s age is far more than a mere chronological fact. It is a fact that generates commonsense conclusions about behavior and perception. Such conclusions apply broadly to children as a class. And, they are self-evident to anyone who was a child once himself, including any police officer or judge.
Time and again, this Court has drawn these commonsense conclusions for itself. We have observed that children generally are less mature and responsible than adults, [cit.]; that they often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them, [cit.]; that they are more vulnerable or susceptible to . . . outside pressures than adults, [cit.]; and so on. Addressing the specific context of police interrogation, we have observed that events that would leave a man cold and unimpressed can overawe and overwhelm a lad in his early teens. [Cits.] ... Describing no one child in particular, these observations restate what any parent knows — indeed, what any person knows — about children generally. [Cit.]

J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011).

We think these observations provide pertinent perspective to the present case, and compel us to conclude that the trial court erred by admitting Boyd’s statement under the totality of the circumstances of this case.

2. However, we find no error in the admission of evidence that the victim identified Boyd as the person who brandished the shotgun during a show-up identification procedure conducted shortly after the crime was committed. Although the victim was told by an officer that there were some “similarities,” the officer also testified that he told the victim that police did not know if the people they had detained were involved or “related” to the crime, and testified that he did not at any time during the show-up attempt to lead the victim toward an identification. Having considered all the circumstances surrounding the show-up procedure, we find that the trial court did not clearly err by admitting the identification evidence in this case. E.g., Billingsley v. State, 294 Ga. App. 661, 662 (1) (669 SE2d 699) (2008); Horne v. State, 260 Ga. App. 640, 643 (4) (580 SE2d 644) (2003). Moreover, the fact that the victim could not identify Boyd at trial, while certainly something for the jury to consider, did not render this evidence inadmissible particularly since the pre-trial identification was based at least in part on Boyd’s clothing and hairstyle at that time, and his facial features were at least partially concealed during the robbery. This enumeration thus affords no basis for reversal.

Judgment reversed.

Ellington, C. J., Barnes, P. J., Phipps, P. J., Doyle, P. J., and Miller, J., concur. Blackwell, J., concurs in part and dissents in part.

BLACKWELL, Judge,

concurring in part and dissenting in part.

When Darrell Emmanuel Boyd, Jr., agreed to give a statement to an investigator, he did not, the majority concludes, knowingly and voluntarily waive his constitutional privilege against self-incrimination. Along the way to this conclusion, the majority, I think, gives too little deference to the considered judgment of the court below, pays too little attention to important evidence that the waiver was knowing and voluntary, and in the end, misapplies the relevant legal standard to the facts that appear from the record. Based on my review of the precedents and the evidence in this case, I conclude that Boyd did knowingly and voluntarily waive his privilege, and for that reason, I respectfully dissent with respect to Division 1 of the majority opinion.

When the State offers evidence in its case-in-chief that the accused made an incriminating statement in the course of a custodial interview, it must prove that the accused knowingly and voluntarily waived his constitutional rights that pertain to such an interview, including his privilege against self-incrimination. J. D. B. v. North Carolina,_U. S._(II) (A) (131 SC 2394, 180 LE2d 310) (2011). To determine whether a waiver was knowing and voluntary, the courts look to the totality of the circumstances. Reed v. State, 285 Ga. 64, 64-65 (3) (673 SE2d 246) (2009). In the case of a waiver by a minor child, such as Boyd, the courts still look to the totality of the circumstances, but they must give special attention to nine particular circumstances, namely:

(1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends or an attorney; (5) whether the accused was interrogated before or after formal charges had been filed; (6) methods used in interrogations; (7) length of interrogations; (8) whether vel non the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extra judicial statement at a later date.

Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976) (citation and punctuation omitted). See also Green v. State, 282 Ga. 672, 673-674 (2) (653 SE2d 23) (2007); In the Interest of C. H., 306 Ga. App. 834, 835-836 (2) (703 SE2d 407) (2010). But even in the case of a minor, the State is only required to prove a knowing and voluntary waiver by a preponderance of the evidence. See Swain v. State, 285 Ga. App. 550, 552 (647 SE2d 88) (2007); In the Interest of R. J. C., 210 Ga. App. 286, 289 (435 SE2d 759) (1993).

When we review the denial of a motion to suppress a statement given in a custodial interview, we owe no deference to the way in which the court below resolved questions of law, but we owe substantial deference to the way in which it resolved disputed questions of fact and assessed the credibility of witnesses, yielding to its findings about such things unless the findings are clearly erroneous. See Watkins v. State, 289 Ga. 359, 363 (4) (711 SE2d 655) (2011). And on appeal, we must view the evidence in the light most favorable to the decision below. See Wilson v. State, 211 Ga. App. 457, 458 (1) (439 SE2d 685) (1993). The majority acknowledges the standard of review, but it goes on to say that, when the facts are “discernible from a videotape,” we can discern the facts ourselves and owe no deference to the findings of the court below. That is true enough, but in this case, not all of the material facts are discernible from the video recording of the custodial interview. In addition to the recording, the court below also heard and considered the testimony of the interviewing investigator and Boyd himself. As this Court previously has acknowledged, when facts are found on a motion to suppress from evidence that includes both a recording of a custodial interview and courtroom testimony, we defer to the findings of the trial court about such facts unless clearly erroneous. State v. Floyd, 306 Ga. App. 402, 402, n.1 (702 SE2d 467) (2010). See also State v. Folsom, 286 Ga. 105, 111 (4) (686 SE2d 239) (2009) (applying clearly erroneous standard where evidence included, but was not necessarily limited to, video recording of interrogation); Wright v. State, 285 Ga. 428, 431-432 (2) (677 SE2d 82) (2009) (same); Reed, 285 Ga. at 65 (3) (same). The only findings as to which we owe no deference to the trial court are those findings that pertain to facts on which the recording alone, and no other evidence, sheds light. When a trial judge had the opportunity to see and hear the testimony of those involved in a custodial interview — an opportunity that we, as appellate judges, do not have — we owe some deference to his assessment of whether the accused knowingly and voluntarily waived his rights. And especially when the accused himself testifies, the trial judge is in a unique position to assess the intelligence and maturity of the accused, as well as his understanding of legal principles and proceedings, all of which is relevant, of course, to the question of a knowing and voluntary waiver. See Murray v. State, 276 Ga. 396, 397 (2) (578 SE2d 853) (2003) (noting that defendant, who was in the ninth grade, had no difficulty in understanding the proceedings at the motion to suppress hearing).

In this case, the courtroom testimony suggests important facts that cannot be discerned from the recording of the custodial interview. Boyd testified at the hearing on his motion to suppress that he agreed to an interview with the investigator only because the investigator, Boyd said, had threatened to “bury [him] under the jail” if he did not. The investigator denied that he made such a threat, and the court below was permitted, as it did, to assess the credibility of these witnesses and determine that Boyd had not testified truthfully. The majority appears to defer to this credibility determination and accept that no threat was made, but it does not follow through, as it must, and also defer to the inferences that a reasonable finder of fact might have drawn from the testimony that Boyd gave. Having concluded that Boyd was untruthful about the threat, the court below might properly have inferred from his testimony — in which Boyd said nothing about having misunderstood his rights, about having been too tired to think much about them, about having had no contact with his parents or a lawyer, or about having been deceived by encouragements to “straighten out what in the hell happened this evening” — that Boyd understood his rights well enough and knowingly and then voluntarily waived them. After all, if Boyd had been confused, or if his will had been overborne by the circumstances of the interview or the deceit of the investigator, surely he would have said so. Moreover, even without regard to the absence of testimony about these things, the court below might properly have inferred from the mere fact that Boyd was untruthful about a threat that he had no good grounds upon which to move to suppress his statement. See Ferguson v. State, 307 Ga. App. 232, 236 (1) (704 SE2d470) (2010) (“So, if you can show that a plaintiff has been suborning false testimony, and has endeavored to have recourse to perjury, it is strong evidence that he knew perfectly well his cause was an unrighteous one.”) (citation and punctuation omitted).

The testimony of the investigator who interviewed Boyd also is important. This investigator testified that Boyd showed no signs of disorientation or distress during the interview, and although Boyd seemed tired, he never “lost track of what was going on.” It is well and good to consider what is depicted by a video recording of an interview, but the observations of a credible witness, who was seated across a table from the accused at a distance of only a couple of feet during the interview, also are entitled to some consideration. And the majority appears to give no deference to the facts that the court below might have found by viewing the recording in light of what the investigator said at the hearing. The majority, I think, gives too little deference to the considered judgment of the trial judge.

With the evidence presented at the hearing below, the burden of proof, and the deference appropriately owed to the court below in mind, I turn now to consider the totality of the circumstances of the interview, including the circumstances to which special attention must be paid in the case of a minor and upon which the majority concludes that Boyd did not knowingly and voluntarily waive his rights. With respect to the age of the accused, both this Court and our Supreme Court have said that minors fifteen years of age, and some even younger, are capable of making an informed decision to waive their constitutional rights and speak with police. See Murray, 276 Ga. at 397-398 (2) (upholding custodial statement of 15-year-old); State v. McBride, 261 Ga. 60, 63 (2) (b) (1) (401 SE2d 484) (1991) (15-year-old defendant); Marshall v. State, 248 Ga. 227, 229 (3) (1) (282 SE2d 301) (1981) (14-year-old defendant); Williams v. State, 238 Ga. 298, 302 (1) (232 SE2d 535) (1977) (14-year-old defendant); In the Interest of C. H., 306 Ga. App. at 836 (2) (14-year-old defendant); Swain, 285 Ga. App. at 552 (15-year-old defendant); Stone v. State, 271 Ga. App. 748, 750 (1) (610 SE2d 684) (2005) (15-year-old defendant); Martin v. State, 256 Ga. App. 527, 529 (2) (a) (568 SE2d 754) (2002) (13-year-old defendant); C. R. T. v. State, 148 Ga. App. 628, 629 (252 SE2d 58) (1979) (11-year-old defendant). Similarly, Georgia courts have held on numerous occasions that an eighth-grade education is sufficient to allow an adolescent to understand and waive his Miranda rights. Murray, 276 Ga. at 397 (2) (at the time of his custodial statement, defendant “was enrolled in the ninth grade in school”); Marshall, 248 Ga. at 229 (3) (2) (defendant was in the eighth grade of a school for emotionally disturbed children); In the Interest of C. H., 306 Ga. App. at 836 (2) (defendant “had an eighth grade education and could read and write”); Stone, 271 Ga. App. at 750 (2) (defendant “had completed the eighth grade”). The majority, however, implies that despite his age and education, Boyd should be treated in a different way than other 15-year-old, high-school freshman because he “could not tell the officer his street address or whether he lived in Norcross or Lilburn.” Although Boyd could not give his precise address during the interview, he was able to identify the name of the apartment complex in which he lived and describe in some detail where that complex was located, indicating that Boyd, in fact, knew exactly where he lived and how to get there, even if he did not know the mailing address associated with that location. See Stone, 271 Ga. App. at 750 (2) (addressing the juvenile’s eighth-grade education and noting that he “gave detailed narrative responses to the [interview] questions, not simple monosyllabic answers”). Moreover, Boyd was able to recite the telephone numbers for his parents and his social security number, which he had the presence of mind to volunteer to the investigator near the end of the interview.

But in any event, the question is not whether Boyd is as smart as most 15-year-olds. The question instead is whether, given the totality of the circumstances, the evidence supports the conclusion of the court below that Boyd was intelligent enough to understand the things about which he was being interviewed and his constitutional rights and to make an informed decision to waive those rights. See Stone, 271 Ga. App. at 750-751 (2) (upholding trial court’s finding that 15-year-old defendant made a knowing and intelligent waiver of his rights despite expert testimony that he had an IQ of 89, “the mental age of a twelve-year-old, a fourth-grade reading comprehension level, and a verbal comprehension level of a nine-year-old”). I see nothing in the record to indicate that Boyd was not capable of understanding these things, and I do not have the opportunity, as did the court below, to observe Boyd in person. I do not think we can find that the trial court clearly erred when it found that Boyd made a knowing and voluntary waiver of his rights.

The record also supports the conclusion that Boyd understood the basis of the charges against him as well as his right to consult an attorney and his right to remain silent. The robbery occurred only a few hours before Boyd was interviewed, and no one disputes that Boyd understood that the investigator wanted to discuss the robbery. Boyd never claimed at the hearing that he did not understand why the police were questioning him or that he believed the police had an interest in anything other than the robbery. Thus, although there was no testimony that Boyd was told specifically he was facing charges of armed robbery, and although he may not have understood the precise legal implications of his conduct, the evidence was sufficient to support the conclusion that Boyd understood at least the general nature of the charges he might face. The majority points to Boyd’s belief that the gun was unloaded and infers that he might have believed this circumstance would mitigate his crime, but even if he did, every teenager reasonably ought to understand, I think, that any crime involving a firearm is, relatively speaking, a serious matter.

Moreover, the recording of the interview shows that Boyd was informed of his rights to remain silent and consult with a lawyer, he acknowledged he understood those rights, and he agreed to waive them. This evidence supports the trial court’s finding that Boyd’s waiver was knowing and intelligent. See Murray, 276 Ga. at 397 (2) (affirming denial of motion to suppress where it was established at the motion to suppress hearing that the juvenile suspect was informed of his rights and acknowledged that he understood them); Stone, 271 Ga. App. at 751 (3) (police informed juvenile suspect of his Miranda rights, including the right to remain silent and to consult with an attorney, and juvenile subsequently executed a written waiver of those rights). The majority implies that Boyd might not have understood his rights because they “were unnecessarily read [to him] in a way that might have confused an adult, much less a 15-year-old being interviewed at 2:30 a.m.” I disagree. As the taped interview shows, the investigator told Boyd, “I am going to read you your rights” and the investigator then explained that he would be reading those rights to Boyd as if Boyd was reading those rights to himself. I fail to see how Boyd could reasonably believe, particularly in light of the officer’s explanation to him, that the investigator was saying that the investigator, rather than Boyd, had a right to remain silent and to consult a lawyer.

Furthermore, the majority’s analysis of this issue is seriously undercut by the evidence presented at the motion to suppress hearing. The recording of the interview reveals that, at no time during or after the reading of rights to Boyd, did he express any confusion or ask any questions about those rights. Indeed, when asked if he understood his rights, Boyd nodded his head in the affirmative. Additionally, as noted earlier, the investigator testified that Boyd appeared to understand everything he was being told during the interview, and Boyd himself testified that he did not invoke his right to remain silent only because of the threat that the investigator allegedly made, a threat that, the court below properly found, never was made in fact. That testimony, standing alone, indicates that Boyd understood that he had the right to remain silent, but chose not to invoke that right.

It is also clear from the record that Boyd was not held incommunicado and denied access to his parents or to a lawyer. Rather, the record shows that Boyd never asked to speak with an attorney, with either of his parents, or with any other trusted adult. And, as the majority acknowledges, our Supreme Court has declined to adopt a per se rule either that a parent must be present or that a juvenile must be asked specifically if he wishes to talk with a parent, before being interviewed by police officers. See Murray, 276 Ga. at 398 (3) (“we have consistently held that the custodial statement of a juvenile is not rendered inadmissible merely because it was made in the absence of a parent”); Killings v. State, 296 Ga. App. 869, 872 (2) (676 SE2d 31) (2009) (even though juvenile had given police contact information for his mother, the fact that he “was interviewed outside the presence of his mother, although a factor to be considered by the trial court, did not preclude the admission of his statement”); Dickerson v. State, 292 Ga. App. 775, 776 (1) (666 SE2d43) (2008) (physical precedent only) (noting that the juvenile code does not require “a parent to be present during questioning” of a minor arrested for or suspected of a crime). Given that Boyd never asked to speak with a parent or anyone else, I believe it is patently unreasonable to suggest either that Boyd was held incommunicado or that the police otherwise acted inappropriately. Murray, 276 Ga. at 397 (2) (juvenile not held incommunicado where he “did not ask to speak with his parents nor was he denied access to a telephone or prevented in any way from contacting family members”); Stone, 271 Ga. App. at 751 (4) (juvenile not held incommunicado where “[djuring the interview, [he] made no request to see or speak with any relatives, friends, or an attorney”).

The majority also finds that the methods used in the interview are problematic, mostly because the investigator first encouraged Boyd to “straighten out what in the hell happened this evening” and then asked Boyd if he “wanted to get it straightened out now,” all without having informed Boyd of the precise charges he faced. The officer’s use of the term “straightened out,” the majority reasons, could have caused a juvenile, unaware of the serious nature of the charges he was facing, to believe that there would be no repercussions if he simply explained to the police what had happened. Again, I disagree with this analysis.

Our cases make clear that police officers encouraging a suspect to talk, urging them to tell the truth, and informing them that not talking or lying will only make things worse, without more, “does not constitute hope of benefit so as to render involuntary any statement made thereafter.” In Interest of J. L., 229 Ga. App. 447, 450 (2) (494 SE2d 274) (1997), citing Henry v. State, 265 Ga. 732, 736 (4) (c) (462 SE2d 737) (1995) (punctuation omitted). See also Stone, 271 Ga. App. at 752 (6) (“[t]he police’s insistence that [a juvenile suspect] tell the truth was appropriate” method of interrogation); Owens v. State, 209 Ga. App. 272, 273 (433 SE2d 382) (1993) (the hope of a benefit “which originates in the mind of the person making the confession and which originates from seeds of his own planting,” rather than from the words of the police, does not render a confession involuntary) (citation and punctuation omitted). And as I mentioned earlier, even though the officer did not inform Boyd explicitly that he was facing charges of armed robbery, Boyd clearly was aware of the incident that precipitated the interview. Notably, the majority acknowledges that the interrogation methods used here are permissible, at least for adults. It then concludes, however, that these methods are “ill-advised when interviewing a juvenile.” Whether certain police interrogation tactics are ill-advised, however, is not the question with which we are presented. Our job is not to grade the police. The only question with which we are presented is whether such tactics render involuntary an otherwise voluntary and knowing waiver of constitutional rights. And although the majority finds that the tactics used here suggest that Boyd’s waiver was not knowing and voluntary, it cites no legal authority to support this conclusion. In light of the legal authority that does exist, however, I cannot agree with the majority’s conclusion that the interview tactics were so unreasonable that they rendered Boyd’s waiver of his rights invalid. See, e.g., Swain, 285 Ga. App. at 552-553 (affirming denial of motion to suppress juvenile’s confession even though the interviewing detective “used some profanities during the interview, called [defendant] a liar and a coward, and told [defendant] some lies regarding other evidence that they had against him,” where the detective did not threaten the defendant or promise him a benefit, and the defendant “failed to cite to any authority to support his argument that the methods the detective used were improper or otherwise required the exclusion of” his confession).

Decided March 28, 2012.

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

For all these reasons, and based upon a consideration of the totality of the circumstances, including the nine Riley factors, under a proper standard of appellate review, we ought to affirm the denial of the motion to suppress. Because the majority does not, I respectfully dissent.

       The record shows that two of Boyd’s co-defendants entered guilty pleas to the lesser included offense of robbery and the other offenses were nol-prossed. The co-defendants received sentences of seven to serve three and ten to serve four respectively and were also accorded first offender treatment. Another defendant, with whom Boyd was tried, was found not guilty.

       By quoting this statement, we are in no way failing to give proper deference to the trial court’s factual and credibility determinations concerning testimony presented at the motion to suppress hearing, although we do note that the trial court in this case did not make any specific factual findings in its order denying the motion to suppress. Further, in our view the “controlling facts” in this case are discerned from the recording of the interrogation.

       Presumably Boyd was in the early part of his ninth grade year since the crime occurred in September.

       The dissent “doubt[s] that 2:30 a.m. is an especially late hour for many teenagers.” But the videotape shows, and Osterberg admitted, that Boyd was tired.

       The dissent states that the record “supports the conclusion that Boyd understood the basis of the charges against him....” But the trial court did not make any findings about what Boyd may or may not have understood concerning the charges he might be facing, and in light of Boyd’s statements to the officer that he and his co-defendants knew the gun was not loaded, we should not assume that this 15-year-old knew that he was facing armed robbery charges.

       Although it did not explicitly do so, the trial court implicitly rejected Boyd’s testimony, which Osterberg disputed, that the officer threatened to ‘bury him under the jail” if he did not talk to him, and we defer to that credibility determination on appeal.

       Although the dissent opines that it is not our job to grade the police, it is our job to consider the method used during the interrogation when we are determining the admissibility of a juvenile’s statement. Further, we stress that it is not just the method of interrogation here, but the totality of the circumstances that has led us to conclude the statement should not have been admitted. And, in our view, it is the dissent’s piecemeal approach which misses the mark. Further, in light of the fact that the admissibility of an incriminating statement of a juvenile is analyzed differently than that of an adult, see Vergara, 283 Ga. at 177-178(1), we fail to see how it is a stretch to say that certain interrogation methods may he permissible for an adult but not for a juvenile. See J. D. B. v. North Carolina,_U. S._(131 SC 2394, 2403, 180 LE2d 310) (2011) (quoted infra).

       While not specifically addressing several of the factors, we note that there is no evidence that Boyd refused to give a statement on prior occasions or repudiated the statement which is under review.

       I concur fully in Division 2 of the majority opinion.

       The majority relies on the references in Riley and other cases to the “heavy burden” of the State. See Riley, 237 Ga. at 128. To he sure, the burden is somewhat heavier in cases involving children because of the special attention given to the nine Riley factors and the common-sense notion that, generally speaking, it is more difficult to show a knowing and voluntary waiver by a child than by an adult. But it is still a burden that can be carried by a preponderance of evidence.

       Less deference might be owed when the trial court observes the accused at a point distant in time from his interview. But in this case, Boyd was interviewed in September 2007, and he testified on the motion to suppress his statement only about a year later, in October 2008.

       As the majority acknowledges, it does not address several of the nine factors identified by the Supreme Court in Riley, 237 Ga. at 128, because it does not think every factor is critical to its finding that Boyd’s waiver of his rights was not voluntary and knowing. The factors not directly addressed by the majority include the length of the interview, the fact that Boyd was interviewed before charges were filed, the fact that Boyd had never refused previously to give a statement to the police about this incident, and the fact that Boyd has never repudiated his confession. Under our case law, however, the length of the interview in this case (25-30 minutes) supports the finding that Boyd’s waiver was voluntary. See Murray, 276 Ga. at 397 (2) (interview of juvenile lasted only 36 minutes); In the Interest of C. H., 306 Ga. App. at 835-836 (2) (affirming denial of motion to suppress confession of juvenile, noting that “questioning lasted less than one hour”); Swain, 285 Ga. App. at 552 (fact that juvenile was questioned for approximately two hours did not impact voluntary nature of statement to police); Stone v. State, 271 Ga. App. 748, 752 (7) (610 SE2d 684) (2005) (interview of juvenile lasting 27 minutes “is not coercive”). And the majority appears to concede that both the fact that Boyd never had previously refused to give a statement to the police and the fact that he never repudiated his confession support the denial of the motion to suppress.

       Although Boyd was in the ninth grade at the time of his arrest, that arrest occurred in September of his ninth-grade year. I therefore assume that Boyd had at least the equivalent of an eighth-grade education.

       Although not addressed directly in its legal analysis, the majority also appears to be bothered by the fact that Boyd was handcuffed and placed in the interview room by himself, the interview occurred at approximately 2:30 a.m., and that Boyd was not offered anything to drink either before or during the interview. The tape of the interview does show that Boyd was initially placed in the interview room in handcuffs, and he was left there by himself for approximately 12 minutes. When the investigator entered the room to interview Boyd, however, he immediately removed his handcuffs, a fact that the majority fails to acknowledge. And although the interview did occur during what many of us would consider the middle of the night, I doubt that 2:30 a.m. is an especially late hour for many teenagers. In any event, Boyd was not roused from his bed to be interviewed. More importantly, although no one disputes that Boyd was a little tired, he appears to be alert and responsive during the interview. Finally, while Boyd was not offered anything to drink prior to or during the 24-minute interview, there is no evidence that he asked for anything to drink — or anything else — during that time. Given these facts, I do not think that any of these circumstances support the conclusion of the majority that Boyd’s waiver of his rights was neither knowing nor voluntary. See Swain, 285 Ga. App. at 552 (noting that juvenile defendant “did not ask for food, water, or a break during the interview, which lasted approximately two hours”).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A11A1570.
    HAARHOFF et al. v. JEFFERSON AT PERIMETER, L.P.
    (727 SE2d 140)
   DOYLE, Presiding Judge.

This case arises from a nuisance claim related to storm water runoff filed by property owners Uwe E. Haarhoff and William Heath, Jr. (collectively “the Appellants”) against Jefferson at Perimeter, L.P. (“Jefferson”), which owns an adjacent apartment complex. The trial court granted Jefferson’s motion for summary judgment against Heath and motion for partial summary judgment against Haarhoff. The Appellants contend that the trial court erred by granting Jefferson’s motions because (1) Heath was not required to give ante litem notice to Jefferson; and (2) the issue of attorney fees is for the jury. For the reasons that follow, we affirm the trial court’s grant of summary judgment as to Heath’s claims and reverse the trial court’s grant of partial summary judgment as to Haarhoff’s claim for attorney fees.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c).Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the evidence shows that in March 2007, Jefferson acquired the 20.14 acre property at issue, upon which was an apartment complex and drainage system for the property, including three detention ponds. The property was upstream of the homes of the Appellants, who claim in their complaint that Jefferson’s failure to maintain the three detention ponds causes regular sanitary sewer backups and storm water flooding of their property. The Appellants provided the expert testimony of Elvin Aycock, P.E., who concluded that Jefferson’s failure to clear trash and debris from the detention ponds on the property increased the amounts of storm water runoff from the apartment complex onto Haarhoff’s and Heath’s properties. Jefferson’s representatives deposed that they did not perform inspections or maintenance of the detention ponds. In addition to Aycock’s testimony, Jefferson’s own expert deposed that the type of detention ponds on the property normally require maintenance, including the removal of trash and other debris.

Jefferson filed a motion for summary judgment as to Heath’s claims and a motion for partial summary judgment as to Haarhoff’s claim for attorney fees, which motions the trial court granted after a hearing on the matters. This appeal followed.

1. Heath argues that the trial court erred by granting summary judgment to Jefferson because he was required to give ante litem notice to Jefferson prior to filing the lawsuit. We disagree.

Pursuant to OCGA § 41-1-5 (b), “[pjrior to commencement of an action by the alienee of the property injured against the alienee of the property causing the nuisance, there must be a request to abate the nuisance.” Thus, Heath was required to provide Jefferson with notice of the nuisance or a request to abate prior to filing suit unless Jefferson did “anything to increase the nuisance.”

Heath argues that OCGA § 41-1-5 (b) does not require such notice pre-suit in this case because Jefferson knowingly increased the existing nuisance by failing to inspect or maintain the drainage ponds on the property, which contributed to the excessive amount of runoff from the Jefferson property onto Heath’s property. “[T]he statutory notice requirement applies only to an alienee ‘who merely acquires property on which there is an existing nuisance, passively permits its continuance, and adds nothing thereto.’ ” The undisputed evidence presented to the trial court established that Jefferson acquired the property after the detention ponds had been built and after storm water runoff from the Jefferson property had already become problematic on Heath’s property. Heath presented no evidence that Jefferson “altered the property” or took any other affirmative action to increase the nuisance, and therefore, the trial court correctly determined that Heath’s failure to provide ante litem notice to Jefferson prohibited him from pursuing his nuisance claims.

2. Haarhoff argues that the trial court erred by granting partial summary judgment to Jefferson as to his claim for attorney fees pursuant to OCGA § 13-6-11 because a question of fact exists for the jury. We agree and reverse.

OCGA § 13-6-11 provides that

[t]he expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
It is only necessary to the plaintiffs recovery that he show any one of these three conditions exists. Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in how defendant acted in his dealing with the plaintiff. The question of bad faith in the underlying transaction is for the trier of fact to determine.

Although slight, some evidence exists in the record from which the jury could find that after Haarhoff notified Jefferson in February 2009 of the possible nuisance prior to filing the lawsuit in August 2009, Jefferson failed to take any action to remedy the alleged increase flow of storm water runoff from the detention ponds. Therefore, the trial court erred by granting summary judgment on the issue of attorney fees.

Decided March 29, 2012.

Martin & Jones, Samuel L. Starks, for appellants.

Wilson, Morton & Downs, Chadwick H. Greer, Kendric E. Smith, for appellee.

Judgment affirmed in part and reversed in part.

Ellington, C. J., and Miller, J., concur.

       The Appellants also filed claims against DeKalb County, which claims are not at issue in this appeal.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Savannah Elec. & Power Co. v. Horton, 44 Ga. App. 578, 579 (3) (162 SE 299) (1932) (undisputed evidence showed that defendant added numerous wires where previously two had been; thus, defendant “continued and increased the trespass, and therefore was not entitled to notice or a request to desist as a condition precedent to liability).

       (Citation omitted.) Macko v. City of Lawrenceville, 231 Ga. App. 671, 676 (8) (499 SE2d 707) (1998), overruled on other grounds by Kleber v. City of Atlanta, 291 Ga. App. 146, 152 (1) (c) (661 SE2d 195) (2008), reversed on other grounds by City of Atlanta v. Kleber, 285 Ga. 413 (677 SE2d 134) (2009).

       See Macko, 231 Ga. App. at 676 (8), 677 (9). See also Hoffman v. Atlanta Gas Light Co., 206 Ga. App. 727, 731-732 (2) (426 SE2d 387) (1992).

       (Punctuation and footnotes omitted.) City of Atlanta v. Hofrichter/Stiakakis, 291 Ga. App. 883, 888 (2) (663 SE2d 379) (2008). See also Tyler v. Lincoln, 272 Ga. 118, 121 (2) (527 SE2d 180) (2000).

       See Hofrichter/Stiakakis, 291 Ga. App. at 887-888 (2); Stargate Software Intl. v. Humph, 224 Ga. App. 873, 878 (4) (482 SE2d 498) (1997) (attorney fees available “[d]espite the existence of a bona fide controversy as to liability.”).


text:
    A11A1751.
    ERTURK v. GEICO GENERAL INSURANCE COMPANY.
    (726 SE2d 757)
   DOYLE, Presiding Judge.

This appeal arises from the denial of summary judgment regarding an estate’s attempt to collect a claim from the decedent’s uninsured motorist coverage. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA§ 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

The undisputed facts of the record establish that Cuneyt Erturk sustained fatal injuries in a car accident on October 25, 2008, when he was hit by William Paul Davis IV. Trivilla A. Erturk, Cuneyt’s widow, individually and as the court-appointed administrator of the estate of Cuneyt Erturk, settled claims with Davis’s insurer, State Farm Insurance, for the $100,000 limit of the policy carried on the vehicle. The settlement was apportioned with $99,000 to the wrongful death claim (“the Widow”) and $1,000 to the survival claim (“the Estate”).

At the time of the accident, Cuneyt carried a motor vehicle insurance policy issued by GEICO General Insurance Company (“Geico”), which contained uninsured motorist coverage in the amount of $25,000. In November 2009, Erturk filed a claim on behalf of the estate contending that it was “underinsured,” pursuant to OCGA § 33-7-11, by $24,000. Geico denied the claim, and Erturk thereafter filed the instant suit for breach of contract. The parties filed cross-motions for summary judgment on the issue of whether Erturk could collect from Geico under OCGA § 33-7-11, and the trial court agreed with Geico.

Erturk now appeals from the trial court’s denial of her motion for summary judgment, arguing that the court erred by finding that the wrongful death claim and survival claim were derivative and that the Estate was not covered by the Geico uninsured motorist policy.

The 2008 version of OCGA § 33-7-11 (b) (1) (D) (ii) applicable to this case stated that an uninsured motor vehicle includes one subject to

[b] odily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy, but the motor vehicle shall only be considered to be uninsured for the amount of the difference between the available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle and the limits of the uninsured motorist coverage provided under the insured’s motor vehicle insurance policy; and for this purpose available coverages under the bodily injury liability insurance and property damage liability insurance coverages on such motor vehicle shall be the limits of coverage less any amounts by which the maximum amounts payable under such limits of coverage have, by reason of payment of other claims or otherwise, been reduced below the limits of coverage.

Generally then, an uninsured motorist provider has no exposure to liability if the policy limits of the tortfeasor’s liability insurance equals or exceeds the policy limits of the uninsured motorist coverage. As explained by the Supreme Court of Georgia in State Farm Mut. Automobile Ins. Co. v. Adams,

to determine whether a motor vehicle is underinsured, and thereby an uninsured motor vehicle, one must determine whether the injured party’s uninsured motorist coverage exceeds the sum of the tortfeasor’s full liability coverage minus payments of other claims (e.g., to other parties injured by the tortfeasor) or otherwise.

Normally then, the injured party is limited to the per-person limit of the tortfeasor’s liability insurance unless the injured party carries uninsured motorist coverage at or above the limits of the at-fault driver’s coverage.

In this case, the Estate contends that although the initial amount of Davis’s liability insurance was $100,000 and therefore greater than Cuneyt’s $25,000 uninsured motorist coverage, the maximum amount payable to the Estate from Davis’s liability insurance was $1,000 after the Widow’s $99,000 wrongful death settlement was subtracted. Thus, Erturk argues, Davis’s available liability coverage is less than the limits of Cuneyt’s uninsured motorist policy “by reason of payment of other claims or otherwise,” and the trial court therefore erred by finding that this was not the case.

“[T]he starting point for interpretation of contracts for insurance is the contract itself,” and turning to the language of the policies here, we find that Davis’s liability policy defines bodily injur/’ as “bodily injury to a person and sickness, disease, or death that results from it.” Davis’s State Farm policy further explains that

[t]he limit shown under “Each Person” [on the declarations page for bodily injury coverage] is the most we will pay [here, $100,000] for all damages resulting from bodily injury to any one person injured in any one accident, including all damages sustained by other persons as a result of that bodily injury . . . regardless of the number of. . . claims made.

In its uninsured motorist section, the Geico policy states that

[t]he limit of bodily injury liability for Uninsured Motorists Coverage stated in the declarations as applicable to each person is the limit of our liability for all damages, including those for care or loss of services or loss of consortium, due to bodily injury sustained by one person as the result of one accident.

Here, the trial court properly determined that the wrongful death claim and survival claim were limited to the per-person liability of Davis’s bodily injury liability insurance — that the depletion of $99,000 of Davis’s liability insurance by the Widow did not entitle the Estate to coverage by Cuneyt’s uninsured motorist insurance. While the claims are two separate causes of action with two different beneficiaries under the law, the wrongful death claim here does not constitute an “other claim” for purposes of triggering uninsured motorist coverage under former OCGA § 33-7-11 (b) (1) (D) (ii). As similarly explained by the Supreme Court of Georgia in Thompson v. Allstate Ins. Co., the total payments for the claims of the Estate and the Widow would not exceed the per-person liability limit of Davis’s insurance because the damage to both the Estate and the Widow “arises out of a personal injury to only one person.” An opposite “construction defies both the meaning and intent of the uninsured motorist statute.” Although the Estate and the Widow are collecting different damages resulting from Cuneyt’s death, it does not follow that the per-person policy limits no longer apply. Accordingly, the trial court correctly granted summary judgment in favor of Geico.

Judgment affirmed.

Ellington, C. J., and Miller, J., concur.

Decided March 29, 2012.

Gillis & Creasy, James L. Creasy III, Bell & Mulholland, Lloyd N. Bell, for appellant.

Wallace Miller III, for appellee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       The named insured was actually Susanne G. Davis, which distinction has no bearing on the issue before us.

       See Crafter v. State Farm Ins. Co., 251 Ga. App. 642, 644 (554 SE2d 571) (2001).

       288 Ga. 315 (702 SE2d 898) (2010).

       Id. at 316.

       Cf. Jefferson Ins. Co. v. Thomas, 278 Ga. App. 89 (628 SE2d 171) (2006), citing Crafter, 251 Ga. App. at 642.

       The parties have stipulated that the Estate could establish damages greater than $25,000 in its survival claim against Davis.

        Anderson v. Mullinax, 269 Ga. 369 (1) (497 SE2d 796) (1998).

       (Emphasis omitted.)

       (Emphasis omitted.)

       See OCGA§§ 9-2-41; 51-4-2 (a). See also Smith v. Mem. Medical Center, 208 Ga. App. 26, 27-28 (1) (430 SE2d 57) (1993). Compare with Stenger v. Grimes, 260 Ga. 838, 839 (1) (400 SE2d 318) (1991).

       285 Ga. 24, 26-27 (1) (673 SE2d 227) (2009).

       (Punctuation omitted.) Id. at 27 (1). See also Stenger, 260 Ga. at 839, n. 2 (“the estate’s [Survivor’s] claim, like [a] consortium claim... is similarly derivative in that it is based on the same injuries to one person”) (punctuation omitted).

        Young v. Maryland Cas. Co., 228 Ga. App. 388, 390 (1) (491 SE2d839) (1997). Cf. Adams, 288 Ga. at 318-319 (explaining basic policy and purpose of the uninsured motorist statute). Compare with Thurman v. State Farm Mut. Auto. Ins. Co., 278 Ga. 162, 165 (598 SE2d 448) (2004) (holding that plaintiff could recover from uninsured motorist carrier amount subrogated from plaintiffs recovery from tortfeasor’s liability carrier by federal lien holders).


author: Adams, Judge. BARNES, Presiding Judge,

text:
    A11A1855.
    HOOK v. HARMON et al.
    (727 SE2d 143)
   Adams, Judge.

We granted Thomas Hook’s application for interlocutory appeal in order to review the trial court’s denial of his motion for summary judgment in this negligent entrustment action filed by Keith and Doreen Harmon. Because we conclude that Hook is entitled to judgment as a matter of law, we reverse the trial court’s denial of Hook’s motion.

The relevant facts show that Wade Harmon was the 18-year-old son of Keith and Doreen Harmon. On March 20,2006, Hook and Wade Harmon were traveling together from Florida back home to North Carolina on 1-95 in a car owned by Hook’s father. Wade Harmon was driving the car at Hook’s request, even though Hook knew that Harmon’s license had been suspended. Hook said he asked Wade Harmon to drive because Hook was sleep-deprived, and he wanted to get back to North Carolina that night.

While traveling through McIntosh County, Georgia, Wade Harmon lost control of the vehicle, ran off the west shoulder of the interstate, crossed the center median into oncoming traffic, and struck a tractor-trailer in the rear wheels. Harmon was killed in the collision, and Hook was seriously injured. The Georgia state trooper who investigated the accident concluded that the collision was the result of Wade Harmon’s actions. Keith and Doreen Harmon filed suit against Hook for wrongful death, claiming that Hook was negligent in entrusting the car to their son in light of his driving record and suspended license. Hook moved for summary judgment, arguing that Wade Harmon’s negligence was the sole proximate cause of his injuries, which precluded recovery for negligent entrustment. The trial court denied the motion, and this appeal followed.

“Liability for negligent entrustment is predicated upon a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless.” (Citation and punctuation omitted.) Hicks v. Heard, 297 Ga. App. 689, 691 (2) (678 SE2d 145) (2009). Thus, liability under this theory “is predicated not on the doctrine of respondeat superior but on a negligent act of the owner in lending his automobile to another to drive, with actual knowledge that the driver is incompetent or habitually reckless....” (Citations omitted.) Saunders v. Vikers, 116 Ga. App. 733, 735 (5) (158 SE2d 324) (1967). Liability also requires proof that the entrustor’s negligence is a concurring proximate cause of the accident, along with any negligence by the entrustee arising from incompetency or recklessness. Id. But where the injured party is the entrustee, his own contributory negligence generally will bar him from recovery against the negligent entrustor. Ridgeway v. Whisman, 210 Ga. App. 169, 170 (435 SE2d 624) (1993).

In Ridgeway v. Whisman, for example, this Court found that an entrustee’s own negligence barred her parents’ wrongful death claim based on a theory of negligent entrustment. Id. at 170-171. In that case, Ridgeway entrusted her car to Whisman knowing that Whisman was not “in any condition to drive an automobile” because she had been drinking. Id. at 169. Whisman lost control of the car, and as the result of her own driving, or the negligence of a third-party driver, or both, drove off the road. Whisman was killed, and Ridgeway, who was a passenger in the car, was injured. Id. This Court found, as a matter of law, that Whisman’s negligence, either solely or in concurrence with the negligence of the unidentified third party, caused the accident and “any negligence of Ridgeway in entrusting her car to Whisman while she was intoxicated was neither the sole proximate cause nor a concurrent proximate cause of the accident which caused Whisman’s death.” Id. at 171. Accordingly, we reversed the denial of Ridgeway’s motion for summary judgment. Id.

And in Spivey v. Sellers, 185 Ga. App. 241 (363 SE2d 856) (1987), Spivey, an adult, allowed Sellers an unlicensed minor of 15 years of age, who had been drinking, to drive his father’s car. Sellers crashed and was injured. Id. The Court held that even assuming that Spiveyhad knowingly violated Georgia statutory law in allowing Sellers to drive, such a violation did not entitle Sellers to recover because she herself had violated the law

by operating a motor vehicle without a license, thereby creating the hazard her own driving posed. ... [A] s a mentally capable and criminally responsible person illegally operating a motor vehicle, [Sellers] is not among the class of persons for whose benefit [the statute] imposes a duty, the breach of which constitutes actionable negligence.

Id. at 245. The Court also rejected Sellers’ argument that Spivey, who was seated in the back seat of the car, had a duty to stop Sellers from driving once he observed her swerve slightly just before the crash. “[I]t was [Sellers] who had the last opportunity to avoid the effect of the alcohol, her own incompetence and any negligence on [Spivey’s] part by ceasing to operate the automobile she was in control of prior to the crash.” Id.

The only evidence of the accident in this case comes from the Georgia state trooper who investigated it, as Hook was asleep at the time. The trooper stated that Wade Harmon lost control of the car and concluded that the collision occurred as the result of Wade Harmon’s own actions. The Harmons presented no evidence to counter the trooper’s version of events. Therefore, even assuming that Hook was aware of Wade Harmon’s past driving history and the suspension of his license, we conclude as a matter of law that Wade Harmon’s own negligence was the sole proximate cause of his death. Wade Harmon stepped behind the wheel of Hook’s car with full knowledge of his own driving record and his suspended license, and his actions were the sole proximate cause of the fatal crash. It was incumbent upon Wade Harmon to exercise ordinary care for his own safety, and he had the last opportunity to avoid any negligence on Hook’s part by refusing to drive.

Although the Harmons contend that Hook’s negligent entrustment was a concurrent, proximate cause of the accident, they point to no evidence supporting such an assertion. Rather, in making this argument, the Harmons seem to suggest that their adult son was somehow incompetent to a degree that he could not be held responsible for his actions in driving or his own decision to get behind the wheel of the car. No evidence exists, however, that Wade Harmon had been declared incompetent or that he was impaired in any way. Nor does the record contain any evidence to support the Harmons’ assertions that Wade Harmon was forced or pressured by Hook to drive. Hook testified that he asked or directed Wade to drive because he had not slept. But no evidence exists to suggest that Wade Harmon, who was an adult, could not have refused Hook’s request or direction. Moreover, there was evidence that Wade Harmon had driven on several other occasions since losing his license including on a prior trip to Florida and at his job; one witness even testified that Appellee Keith Harmon “had Wade working driving . . . every week to Hilton Head with no license.” Any additional theories proffered by the Harmons as to any force or criminal action on the part of Hook with regard to the accident are unsupported by any facts appearing in the record and thus are mere speculation. And it is well settled that “[s]ummary judgment cannot be avoided based on speculation or conjecture.” (Citation omitted.) Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010).

Accordingly, we find that the Harmons’ wrongful death suit is barred as a matter of law, and the trial court erred in denying Hook’s motion for summary judgment. See, e.g., Cummings v. Grubb, 184 Ga. App. 872, 874-875 (363 SE2d 167) (1987) (where child’s negligence is the sole proximate cause of injury, parents cannot recover for wrongful death as a matter of law).

Judgment reversed.

Blackwell, J., concurs. Barnes, P. J., concurs specially.

Decided March 29, 2012.

Brennan, Searcy & Smith, Mark H. Glidewell, for appellant.

Weinstock & Scavo, Jan P. Cohen, Matthew W. Carlton, for appellees.

BARNES, Presiding Judge,

concurring specially.

While I agree with the outcome in this case, I do not agree with all that is said, and therefore I specially concur in the majority opinion. In this case, even if an issue of fact exists about whether Hook negligently entrusted his truck to the Harmons’ 18-year-old son, no evidence relates that negligent entrustment to the single-car wreck in which the son died and Hook was badly injured. There is no evidence that the son had been speeding or acting recklessly, which were some of the reasons his parents gave for asking Hook and his landlord not to allow their son to drive and for directing that all decisions regarding the son were to go up a “chain of command,” secretly headed by the father.

I specially concur because under our tort jurisprudence, there may be situations in which an entrustee may sue his entrustor for negligent entrustment, despite considerations of assumption of risk, proximate cause, and contributory negligence. I agree that this is not one of those cases, and therefore, I specially concur in the majority opinion.

       Although a factual dispute exists as to whether Hook actually knew Wade Harmon’s license had been suspended, for purposes of summary judgment we must assume that he did. Although a factual dispute also exists as to whether Hook was aware of Wade Harmon’s driving record or the extent of any prior drug or alcohol use, we will assume on motion for summary judgment that he was aware of these facts.

       The Harmons also sued Hook’s father, but the trial court granted the father’s motion for summary judgment.

       This contributory negligence,
      which acts as a bar to a plaintiffs right of recovery, is comprised of two distinct defenses: (1) at all times a plaintiff must use ordinary care for his own safety, and must not, by his own negligence, he the sole proximate cause of his own injuries, and (2) a plaintiff must use ordinary care to avoid the defendant’s negligence when such negligence is apparent or should in the exercise of ordinary care he apparent to him.
      (Citation omitted.) Id. at 170.

       See OCGA § 40-5-122 (“No person shall knowingly authorize or permit a motor vehicle owned by him or under his control to be driven upon any highway by any person who is not authorized under this chapter or who is not licensed for the type or class of vehicles to be driven or in violation of any of the provisions of this chapter.”).

       The fact that the drivers in the Ridgeway and Spivey cases were intoxicated does not affect the application of those cases here. As the Ridgeway court noted, for purposes of determining negligence or contributory negligence, “any condition, disability or incompetence which was produced by . . . voluntary intoxication may be disregarded, and [the] operation of the vehicle judged as if [the driver] was in possession of her normal mental and physical capacities.” Ridgeway v. Whisman, 210 Ga. App. at 170. See also Spivey v. Sellers, 185 Ga. App. at 243-244 (court did not consider intoxication in addressing negligence issues).

       Hook would also be entitled to summary judgment under the doctrine of assumption of risk:

        Assumption of risk is a matter of knowledge of the danger and intelligent acquiescence in it, while lack of ordinary care for one’s own safety, or contributory negligence, is a matter of some fault or departure from the standard of reasonable conduct. The two may coexist, or either may exist without the other. The difference is frequently one between risks which were in fact known to the plaintiff or so obvious that he must be taken to have known of them, and risks which he merely might have discovered by the exercise of ordinary care.
      (Citations and punctuation omitted.) Wright v. The Concrete Co., 107 Ga. App. 190, 194 (2) (a) (129 SE2d 351) (1962).

       Because I do not agree with all that is said, this opinion is physical precedent only. Court of Appeals Rule 33 (a).


author: MlKELL, Presiding Judge. DILLARD, Judge, BLACKWELL, Judge, BOGGS, Judge,

text:
    A11A2121.
    THE STATE v. BROWN.
    (726 SE2d 764)
   MlKELL, Presiding Judge.

The State of Georgia appeals the grant of Dwight Brown’s motion in abatement which quashed the indictment against him because it was not returned in “open court.” Finding no error, we affirm.

On January 6, 2011, a Cobb County grand jury returned an indictment against Dwight Brown in a courtroom in the recently constructed Cobb County Courthouse (the “Courthouse”). At the time the indictment was returned, the Courthouse had limited accessibility to the public while court employees were moving into it. As a result of this limited access, Brown filed a motion in abatement contending that the indictment was defective because it was not returned in open court. Following an evidentiary hearing, the trial court granted Dwight Brown’s motion and quashed the indictment, holding that the indictment was fatally defective because it was not returned in open court.

At the time the indictment was returned, every exterior doorway was locked and the only entrance available to the public was a walkway, guarded by deputies, connecting the old and the new courthouses. The deputies were stationed there to ensure the integrity of the clerk’s office files being transferred to the new building and as a security measure because some construction workers in the Courthouse were using knives and hammers to install carpeting.

J. Cameron Tribble, an attorney at the firm representing Brown, went to the Courthouse to observe the return of the indictment against Brown. Tribble found the doors to the Courthouse either locked or guarded by sheriffs deputies. To gain entry to the Courthouse, he was instructed to call the court administrator and obtain a personal escort across the walkway to the courtroom. He did so, and it took several minutes for the court administrator to meet him so that he might be escorted into the Courthouse. By the time Tribble was finally able to enter the courtroom, he had missed the return of Brown’s indictment. The presiding judge testified that he did not intend to exclude anyone from the courtroom and that the media and sheriff s department personnel were present in the courtroom. Tribble was delayed approximately ten to fifteen minutes because he could not enter the front entrance of the Courthouse.

Following an evidentiary hearing on Brown’s motion in abatement, the trial court found that because Tribble was “delayed and impaired from reaching [the courtroom],” the indictment was not returned in open court. Accordingly, the trial court granted the motion in abatement and quashed his indictment. The state appeals, arguing that there is no requirement that an indictment be returned in open court; that the indictment was returned in open court; and if the indictment were found to be not returned in open court, such error was harmless because there was no prejudice to the defendant.

The state argues that there is no law requiring an indictment to be returned in open court because neither the United States Constitution nor the Constitution of the State of Georgia addresses this issue. However, Georgia case law has long held that an indictment must be returned in open court to be valid. This requirement “must be complied with in every case,” and failure to comply strictly with this rule may nullify an otherwise valid indictment. This court has held that to satisfy the “in open court” requirement, the “place of the reception of the indictment must be one where the court is being held open to the public.” The rationale behind “surrounding the return of an indictment with formalities and requiring that it be returned in open court is to prevent the administration of criminal laws taking on the aspect of ‘star-chamber’ proceedings.” Further, our Supreme Court has explained that were the “in open court” rule otherwise, “it would render it possible for a designing or revengeful foreman of a grand jury to ruin any citizen by surreptitiously filing with the clerk in his office an indictment manufactured by himself alone, upon which his fellow jurors had taken no action.”

The state notes that Zugar v. State, which stands for the premise that an indictment must be returned in open court pursuant to the Fifth Amendment, relied upon a federal case that has since been abrogated. Despite any abrogation at the federal level, however, our Supreme Court has not abrogated this rule, and we are bound to follow the decisions of our Supreme Court.

In this case, the Courthouse had limited accessibility at the time the indictment was returned against Brown: the exterior doors were locked, the only entrance to the Courthouse — the catwalk — was guarded by deputies, and Tribble was required to call the court administrator in order to be escorted to the courtroom. Tribble was thereby delayed by approximately ten to fifteen minutes in reaching the courtroom, and, as a result, was not present when the indictment was returned. Because of these factors, we find that the courtroom was not open to the public at that time.

Contrary to appellant’s arguments, the fact that other members of the public, including members of the media, were in the courtroom does not mean that the indictment was returned “in open court” for purpose of this analysis. In Cadle, the fact that a number of people, including defendant’s attorneys, were present at the time an indictment was returned in the presiding judge’s chambers adjacent to the courtroom, and not in the courtroom itself, did not alter this Court’s conclusion that the indictment was not returned in open court.

Further, appellant’s argument that Brown has not alleged any prejudice or injury and, accordingly, any error by the trial court is merely harmless error, is meritless. The Supreme Court of Georgia has held that any failure to return the indictment in open court “is per se injurious to the defendant.” None of the cases cited by appellant involve the abandonment of the formalities surrounding the return of the indictment, and thus are inapposite to the case at hand.

Thus, under the circumstances presented here, appellant has failed to show that the trial court erred in granting the motion in abatement and quashing the indictment.

Judgment affirmed.

Barnes, P. J., Miller and Adams, JJ., concur. Dillard, J., concurs fully and specially. Blackwell and Boggs, JJ., dissent.

DILLARD, Judge,

concurring fully and specially.

I concur fully with the majority opinion and write separately only to further address Judge Boggs’s argument that the court in the case sub judice was open and that the majority’s holding “will result in challenges to the open-court rule based upon claims by lawyers or members of the public who arrive at the courthouse minutes before they believe an indictment to be returned, only to be briefly detained by courthouse security or a crowded elevator.”

It is undoubtedly true that post-September 11, we live in a world of heightened security. But the reality is that such “inconveniences” are to be expected and anticipated and are now, unfortunately, almost as commonplace as the nuisance of a crowded elevator. Nevertheless, these situations can certainly be mitigated to some degree by proper planning and time management. Indeed, as the dissent implies, better planning and time management on the part of Brown’s attorney may have been warranted in this case. But ultimately, the punctuality (or lack thereof) of Brown’s attorney is beside the point, and does nothing to change the fact that the courthouse in question was not open to the public.

Indeed, the record reflects that Brown’s attorney required an escort to gain entry into the courthouse and was informed by the escort that the courthouse was not opening to the public until the following week. Additionally, the court administrator for the Cobb Superior Court testified that the courthouse was scheduled to open “for judges to conduct court in the new building” on January 10, 2010 (four days after the return of the indictment against Brown), and that the main exterior doors of the new courthouse were locked. And anyone who gained access to the new courthouse via the catwalk connecting it from the old courthouse would have passed through a standard security checkpoint for the old courthouse prior to reaching the separately guarded catwalk.

As to the specifics of who could access the new courthouse on the day in question, the Sheriff of Cobb County testified that arrangements were made so that “only the presentments” could be received in the new courthouse and that he instructed his staff “to allow anyone that wanted to come into this courtroom, if they had business in this courtroom[,] to come, to allow them,” and to provide an escort if necessary. The sheriff further corroborated testimony that the new courthouse was scheduled to officially open — and did officially open-— the following week, and that the main entrance to the new courthouse was closed on the day in question, with access limited to use of the guarded catwalk that, again, could be reached after passing through an earlier security checkpoint.

The sheriff agreed that a person, after having passed through the initial security checkpoint, could have gone anywhere else except the new courthouse without further checks. But upon reaching the catwalk to the new courthouse, a person would have been subjected to an inquiry as to what his or her business was in the new courthouse. And when asked if access would have been granted to a person who failed to articulate what business he or she had in the new courthouse, the sheriff testified that access would have been denied to such a person.

The sheriff further clarified that the reason for this was due to the presence of construction hammers and knives inside the new courthouse, and the sheriffs desire to limit the number of individuals who did not have “the proper badge and identification.” The sheriff went on to admit that he had expressed concerns to courthouse personnel that the new courthouse should not be opened when construction continued, that the push to open the courthouse was “moving too fast,” and that he could not allow the public to roam free inside the new courthouse due to the presence of dangerous construction tools. And although he testified that a person would have been admitted to the new courthouse if he or she had “stated that their business was they wanted to watch what was going on in the courtroom on January 6th,” the fact nevertheless remains that access to the new courthouse was limited and not available to the general public in the absence of having special knowledge and uttering the right “magic” words — which were not required to observe proceedings at the old courthouse. Thus, this presents a much different situation than that of temporary delay by using a crowded elevator or passing through metal detectors.

In short, however responsible the security measures to limit access to the new courthouse due to the presence of construction tools, the decision to conduct grand jury presentments under circumstances of such limited access directly contradicts our Supreme Court’s acknowledgment that “[i]t is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings, the deliberations of the juries alone excepted.” Additionally, our Supreme Court has noted that public officials “are made conscious of the duty to faithfully perform official acts when they are acting in the presence of the general public; and this fact causes the public to have confidence in the officials, and hence confidence in the governmental departments where such officials serve.” And here, the simple solution to comply with the open-court requirement was to conduct the grand jury presentments in the old courthouse — which was undoubtedly and undisputedly open to the general public without inquisition, subject only to standard security measures — for one additional week.

Accordingly, I concur fully with the majority opinion.

BLACKWELL, Judge,

dissenting.

I respectfully dissent. The court below concluded that the indictment in this case was not returned in a court proceeding open to the public simply because lawyer J. Cameron Tribble did not make it to the courtroom in time to observe the return. The court found that Tribble did not arrive soon enough because he was held up at a security checkpoint until someone arrived to escort him to the courtroom. And the court reasoned that the failure of an escort to appear “without any delay whatsoever” effectively closed the court proceedings that Tribble sought to observe. The court below, I think, applied an incorrect legal standard in assessing whether the delay at the security checkpoint effectively closed the court to the public, and for that reason, I would vacate the judgment below and remand for the court to apply the correct legal standard and reconsider whether the indictment was returned in open court.

When a citizen comes to the courthouse to observe a court proceeding, he may encounter some delay along the way. That delay might be occasioned by a congested security checkpoint, a crowded elevator, an absence of signs clearly identifying the way to the courtroom, misinformation about the particular courtroom in which a proceeding is to be held, or any number of other inconvenient circumstances. As Judge Boggs correctly notes in his dissent, not every delay amounts to a closure of the court. Only when a citizen is unreasonably prevented by courthouse officials from attending a court proceeding — either because his admission to the courtroom is unreasonably refused altogether, unreasonably delayed for a time, or otherwise unreasonably hindered — can it be said that the proceeding is closed to the public. See Purvis v. State, 288 Ga. 865, 868 (708 SE2d 283) (2011) (holding, with respect to right of public to attend criminal trials, that court has obligation “to take reasonable measures to accommodate public attendance”) (emphasis supplied).

The court below made no finding about whether the delay that Tribble encountered was unreasonable, presumably because, as I understand its order, it found “any delay whatsoever” unacceptable. This reflects the application of an incorrect legal standard. The court below also made no findings about many of the circumstances that may prove to be important in assessing the reasonableness of the delay, including, for instance, whether it was reasonable for the Sheriff to require that citizens generally, and Tribble specifically, have an escort, for how long Tribble was delayed by the need to await an escort, whether the escort reasonably should have arrived sooner, and whether Tribble would have made it to the courtroom soon enough to observe the return of the indictment, even with the more prompt arrival of an escort. With so many unanswered questions,1 cannot say as a matter of law that the indictment was not returned in a proceeding open to the public, notwithstanding that I have serious doubts that it was. Consequently, I would vacate the decision of the court below and remand for that court to make the appropriate findings and reconsider whether the indictment was returned in open court, applying the correct legal standard. Because the majority does not, I respectfully dissent.

BOGGS, Judge,

dissenting.

Because this record shows that the indictment was returned in open court, I respectfully dissent.

The majority’s holding on the subject of public judicial proceedings is misplaced under the facts presented in this case. Although access to the courthouse was limited and required the assistance of court personnel, it was not prohibited. Other members of the public and members of the media were present in the courtroom, which demonstrates beyond dispute that the courtroom was indeed open to the public. A partner in the firm representing Brown instructed Tribble, an associate of the firm representing Brown who explained that he did “mostly civil practice,” to attend the reading of the indictment. Both Tribble and the partner were aware of the limited access at the courthouse that day, yet Tribble left his law office at 3:25 p.m., only 35 minutes before he believed that the indictment would be returned. Tribble testified that the courtroom was unlocked, no one stopped him at the door to the courtroom, and other people were present in the courtroom.

As explained in Zugar v. State, 194 Ga. 285 (21 SE2d 647) (1942), “[i]t is a fundamental part of our judicial system that the general public be permitted to witness court proceedings sufficiently to guarantee that there may never be practiced in this State secret or star-chamber court proceedings.” Id. at 289. The proceedings here were not “secret or star-chamber court proceedings.” The face of the indictment signed by the jury foreperson and bailiff shows that it was returned in open court, and the defendant has come forth with no evidence showing otherwise. The majority’s holding here will result in challenges to the open-court rule based upon claims by lawyers or members of the public who arrive at the courthouse minutes before they believe an indictment is to be returned, only to be briefly detained by courthouse security or a crowded elevator.

Decided March 29, 2012

Patrick H. Head, District Attorney, John C. Butters, Assistant District Attorney, Bondurant, Mixson & Elmore, John E. Floyd, for appellant.

Gillen, Withers & Lake, Craig A. Gillen, The Barnes Law Group, Roy E. Barnes, John F. Salter, Jr., for appellee.

Both of the cases cited by the majority are inapposite. In Cadle v. State, 101 Ga. App. 175 (113 SE2d 180) (1960), the judge received the indictment from the bailiff in the presence of the clerk in a room that served as the office of the presiding judge. Id. at 180 (1). Although the door was open between that room and an outer room occupied by members of the public and one of the attorneys for the defendant, the court held that “the evidence relied upon to show that the court was at that time and place being held open to the public is, to say the least, doubtful and uncertain.” (Emphasis in original.) Id. In Zugar, supra, the bailiff delivered an indictment to the clerk of court in the absence of the judge. Id. at 287-288. Neither of these circumstances is present here.

       Brown filed a motion to dismiss appeal as moot. The motion is denied.

        Zugar v. State, 194 Ga. 285, 289-290 (21 SE2d 647) (1942); Sampson v. State, 124 Ga. 776 (53 SE 332) (1906); Clinkscales v. State, 102 Ga. App. 670, 672 (1) (117 SE2d 229) (1960); Walker v. State, 310 Ga. App. 223, 230 (2) (713 SE2d 413) (2011).

       (Citations omitted.) Cadle v. State, 101 Ga. App. 175, 180 (1) (113 SE2d 180) (1960).

       Id. at 181 (1). Accord Zugar, supra at 288.

       (Citation omitted.) Cadle, supra. Accord Zugar, supra at 290 (finding that returning an indictment “in open court” requires “the personal appearance of the grand jury in the courtroom or the place where court was being held open to the public with the judge and clerk present”) (emphasis supplied).

       (Citation omitted.) Clinkscales, supra at 673 (1). Accord Zugar, supra at 290 (rebuffing the idea that “technicalities and formalism” surrounding the return of an indictment serve no good purpose and must be put aside and finding that they serve to protect “the freedom, the liberty, and the dignity of men”).

       (Citation and punctuation omitted.) Sampson, supra at 779.

       See Renigar v. United States, 172 F. 646 (4th Cir. 1909), abrogation recognized by United States v. Lennick, 18 F3d 814 (9th Cir. 1994).

        Nahid v. State, 276 Ga. App. 687, 688 (3) (624 SE2d 264) (2005).

        Cadle, supra at 180 (1).

        Zugar, supra at 291.

        See Isaacs v. State, 259 Ga. 717, 720 (2) (b) (386 SE2d 316) (1989) (Any error arising from basing an indictment against defendant on hearsay was harmless because of the jury’s verdict of guilty, which demonstrated that there was probable cause to charge defendant with offenses for which he was convicted.) and Anderson v. State, 258 Ga. 70 (6) (365 SE2d 421) (1988) (Any error arising from trial court’s failure to order prosecution to comply with defendant’s timely request for indictment, where indictment was on file in the clerk’s office, was harmless.).

       (Emphasis supplied.)

       In this regard, we are unconvinced that the presence of some members of the media leads to a conclusion that the new courthouse was “open.” Indeed, a local reporter testified that he had been made aware that a presentment would he returned on the day in question, that he was escorted across the catwalk by the district attorney, that other members of the media knew about the indictment because he passed word through his assignment desk, and that he had a press pass to gain access into the courthouse.

        Zugar v. State, 194 Ga. 285, 289 (21 SE2d 647) (1942) (emphasis supplied); see also Cadle v. State, 101 Ga. App. 175, 180 (1) (113 SE2d 180) (1960) (“The judge is the court for the reception of indictments only when he is presiding in open court. There must he a judge presiding, the clerk must be present, and the place of the reception of the indictment must be one where the court is being held open to the public.”).

        Zugar, 194 Ga. at 290; see also Blevins v. State, 220 Ga. 720, 725-26 (4) (141 SE2d 426) (1965) (applying the reasoning in Zugar v. State to hold that “the requirement that juries must be drawn in open court... is procedure which enables the public to observe the conduct of the judge in drawing juries and thus prevent any possible corruption or suspicion of corruption in this vital part of our jury system”).

       I agree with much of what Judge Boggs has to say, hut I do not join his dissent because, as I understand it, he would conclude as a matter of law that the court was open to the public and reverse the judgment below. I think that determination ought to be made by the court below, applying the correct legal standard.

       The court said that “[i]f Mr. Tribble was required to have been escorted to the courtroom for reasons of safety or security, then the escort should have been provided without any delay whatsoever.” (Emphasis supplied.)

       The majority makes its own factual finding that Tribble was “delayed by approximately ten to fifteen minutes in reaching the courtroom” as a result of his having to wait for an escort. I do not think the record is so clear that we, as appellate judges, can make such a finding. Tribble testified that he telephoned the court administrator for an escort at 3:33 p.m. and that he eventually arrived in the courtroom between 3:45 and 3:52 p.m. The court administrator said that he needed about five minutes to reach the security checkpoint in the old courthouse so that he could escort Tribble to the courtroom, in part because the elevators were being tested at the time. That is the only evidence concerning the length of the delay. Even assuming that Tribble did not arrive in the courthouse until 3:52 p.m., not all of the nineteen minutes following his call to the court administrator can be fairly attributed to his having to await the escort. Surely it would have taken him several minutes, even after the escort arrived, to cross from the old courthouse to the new courthouse, go to the elevator bank, wait for an elevator, ride an elevator to another floor, and walk to the courtroom in which indictments were being returned. I cannot say from the existing record that “ten to fifteen minutes” was spent awaiting an escort, and I do not understand how the majority can make such a finding on this record. I would leave such fact-finding to the trial judge, who, unlike us, has worked in both the old and new courthouses in Cobb County and presumably is much more familiar with the layout of the courthouses. In any event, even if the majority is right, I cannot say as a matter of law that a “ten to fifteen” minute delay is unreasonable.

       In his special concurrence, Judge Dillard expresses concern about citizens being asked about their reasons for visiting the courthouse before they are admitted, and I share that concern, although I do not think it necessarily is dispositive in this case. Such an inquiry is a circumstance that a trial judge properly can consider in assessing whether security procedures unreasonably hindered a citizen from attending a court proceeding. I do not think, however, that a court proceeding is closed to the public just because such an inquiry is made. A sheriff properly can, I think, inquire about whether someone has legitimate business in the courthouse before admitting them, so long as the sheriff understands that attending and observing court proceedings is the legitimate business of the public, and so long as the manner of inquiry does not unreasonably hinder the public from attending such proceedings. Here, the Sheriff of Cobb County testified that, if a member of the public had asked for admission to the new courthouse to attend and observe court proceedings, he would have been admitted, albeit with an escort.

       We note that Zugar relied in part on Renigar v. United States, 172 F. 646 (4th Cir. 1909), which was later abrogated by the United States Supreme Court as stated in Phifer v. United States, 2008 U. S. Dist. LEXIS 97281 (II) (3) (W.D. N. C. 2008) (errors in grand jury presentment process subject to harmless error analysis).