STATE OF NORTH CAROLINA
v
.
LANNIE BLANE SIMPSON
Attorney General Roy A. Cooper, III, by Assistant Attorney
General Leonard G. Green, for the State.
J. Clark Fischer for defendant-appellant.
MARTIN, Judge.
Lannie Blane Simpson (“defendant”) appeals from a judgment
entered upon his conviction by a jury of robbery with a dangerous
weapon and of being an habitual felon, arising out of defendant's
alleged robbery, with the use of a handgun, of a CVS pharmacy on 6
January 2001. The sole assignment of error brought forward on
appeal is to the trial court's order that defendant be restrained
during his trial. During a recess in the presentation of the
State's evidence, and outside the presence of the jury, the trial
court stated as follows:
I will first say with regard to the
security issue that I have asked the bailiff
to put restraints on [defendant]; and the
reason that I did that and I indicated that
was because looking through the habitual felon
indictment I saw that he had been previously
convicted of felony escape and in light of
that, I did not feel comfortable security-wise
with him not being restrained in thecourtroom.
The trial court noted the objection of defendant's counsel and
advised counsel that the jury would be brought in and out of the
courtroom before anyone else moved; that defendant would not be
walked in front of the jury in shackles; that if defendant were to
testify, he would be brought to the witness stand out of the
presence of the jury; and that the court would otherwise “do [its]
best to keep the jury from seeing that he is under restraint.” The
court inquired as to whether defense counsel wished to be heard
further regarding the matter and counsel responded that he did not.
Defendant's habitual felon indictment contained in the record and
referred to by the trial court revealed that in 1989, defendant was
convicted of felony escape from a state prison in Cabarrus County.
In his sole argument on appeal, defendant contends the trial
court abused its discretion in ordering that he be restrained
during trial, and that this error entitles him to a new trial.
While we agree with defendant that the trial court did not fully
comply with the requirements of G.S. § 15A-1031, he has not shown
prejudice requiring a new trial.
G.S. § 15A-1031 provides:
A trial judge may order a defendant or
witness subjected to physical restraint in the
courtroom when the judge finds the restraint
to be reasonably necessary to maintain order,
prevent the defendant's escape, or provide for
the safety of persons. If the judge orders a
defendant or witness restrained, he must:
(1) Enter in the record out of the presence of
the jury and in the presence of the person to
be restrained and his counsel, if any, the
reasons for his action; and
(2) Give the restrained person an
opportunity to object; and
(3) Unless the defendant or his attorney
objects, instruct the jurors that the
restraint is not to be considered in
weighing evidence or determining the
issue of guilt.
N.C. Gen. Stat. § 15A-1031 (2001).
In the present case, there is no indication in the record that
the trial court instructed the jury that it was not to consider
defendant's restraint in weighing the evidence or determining his
guilt. Nor does it appear defendant or his counsel objected to the
trial court's failure to give such an instruction.
While, as a general rule, a criminal defendant is entitled to
be free from physical restraint at his trial, unless there are
extraordinary circumstances which require otherwise, State v.
Thomas, 344 N.C. 639, 477 S.E.2d 450 (1996), cert. denied, 522 U.S.
824, 139 L. Ed. 2d 41 (1997), there is no per se prohibition
against the use of restraint when it is necessary to maintain order
or prevent escape. State v. Wright, 82 N.C. App. 450, 346 S.E.2d
510 (1986). “What is forbidden--by the due process and fair trial
guarantees of the Fourteenth Amendment to the United States
Constitution and Art. I, Sec. 19 of the North Carolina
Constitution--is physical restraint that improperly deprives a
defendant of a fair trial.” Wright at 451, 346 S.E.2d at 511.
Such a decision must necessarily be vested in the sound discretion
of the trial court.
We are unable to say that the trial court's decision torestrain defendant in the present case was an abuse of discretion.
Though it is true that the escape upon which the trial court based
its decision had occurred a number of years prior to the present
trial, the trial court was in the better position to observe the
defendant, to know the security available in the courtroom and at
the courthouse, to be aware of other relevant facts and
circumstances, and to make a reasoned decision, in the light of
those factors, that restraint was necessary or unnecessary.
Moreover, as in Wright, supra, there is no showing on this record
that the jurors were affected by, or even aware of, defendant's
restraint. The trial court pledged to ensure that the jury would
not see defendant restrained; defendant has not argued that the
court failed to do so, that the jury was able to view defendant's
restraints, or that the jury was otherwise aware defendant was
restrained during trial. As our Supreme Court recently noted,
where the record fails to disclose that a defendant's shackles were
visible to the jury, “the risk is negligible that the restraint
undermined the dignity of the trial process or created prejudice in
the minds of the jurors,” and the defendant will not be entitled to
a new trial on that basis. State v. Holmes, 355 N.C. 719, 729, 565
S.E.2d 154, 163 (2002). Accordingly, we find no prejudicial error.
Defendant's remaining assignments of error are deemed
abandoned. N.C.R. App. P. 28(a); 28(b)(6).
No error.
Judges GREENE and BRYANT concur.
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