State v Moore, (04-562) 04/05/2005

Appeal by defendant from judgment entered 4 November 2003 by Judge Jack Jenkins in Greene County Superior Court. Heard in the Court of Appeals 17 January 2005.

Attorney General Roy Cooper, by Assistant Attorney General Lisa H. Graham, for the State.

Michael J. Reece for defendant-appellant.

GEER, Judge.

    Defendant Charles C. Moore appeals from his conviction for possessing a controlled substance in a penal institution. He argues solely that he is entitled to a new trial because he wore his orange prison jumpsuit during the trial. As the record contains no indication that defendant made any objection at trial to his attire and since we are bound by State v. Smith, 155 N.C. App. 500, 507, 573 S.E.2d 618, 623 (2002), disc. review denied, 357 N.C. 255, 583 S.E.2d 287 (2003) and State v. Berry, 51 N.C. App. 97, 275 S.E.2d 269, disc. review denied, 303 N.C. 182, 280 S.E.2d 454 (1981), we hold that the trial court did not err.
    The evidence offered at trial tended to show that on 5 February 2003, defendant was removed from the general prisonpopulation and was incarcerated in the more closely guarded Essex Unit of the Eastern Correctional Institution. He was placed in a single cell that had been cleaned and inspected prior to his being moved into the cell. Defendant was the only inmate assigned to or using the cell.
    On 10 February 2003, the officer in charge of the Essex Unit was at his desk located across from defendant's cell. He observed another inmate stop at defendant's cell and attempt to pass something under the cell door. The officer immediately ordered the inmate to leave the cell block and placed him in administrative segregation. Defendant's cell was searched and marijuana was found lying inside an opened letter on defendant's bunk.
    Defendant was indicted with possessing a controlled substance in a penal institution facility in violation of N.C. Gen. Stat. § 90-95(a)(3) (2003). He was transported to court for trial on this charge on 3 November 2003. Prior to his case being called for trial, defendant, attired in an orange prison jumpsuit and wearing shackles, was briefly taken into the courtroom and seated in the jury box. At this time, there were approximately 20 people inside the courtroom, some of whom may have been a part of the jury pool. As a consequence, trial counsel moved to continue the case, arguing that the jury pool was tainted after having seen defendant in leg shackles. After hearing the arguments of defendant's attorney and the prosecutor, the trial court denied counsel's motion and proceeded to trial.
    Apparently, throughout the trial, defendant continued to wearhis prison jumpsuit. The jury found defendant guilty, and the trial court sentenced him to 11 to 14 months imprisonment, to run at the expiration of any sentences that he was presently obligated to serve. Defendant has timely appealed from this conviction.
    In the only assignment of error brought forward in his brief, defendant argues that the trial court committed reversible error by allowing him to be tried while in a prison uniform, in violation of N.C. Gen. Stat. § 15-176 (2003). N.C. Gen. Stat. § 15-176 provides:
            It shall be unlawful for any sheriff, jailer or other officer to require any person imprisoned in jail to appear in any court for trial dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with shaven or clipped head. And no person charged with a criminal offense shall be tried in any court while dressed in the uniform or dress of a prisoner or convict, or in any uniform or apparel other than ordinary civilian's dress, or with head shaven or clipped by or under the direction and requirement of any sheriff, jailer or other officer, unless the head was shaven or clipped while such person was serving a term of imprisonment for the commission of a crime.

Defendant contends that this statute prohibits a person ever being tried in prison garb.
    As defendant acknowledges, however, this Court has previously held otherwise: "The statute provides that while it is unlawful for any sheriff, jailer or other officer to require a prisoner to appear in court for trial dressed in the uniform of a prisoner, it is not necessarily unlawful for a prisoner to so appear." Berry, 51 N.C. App. at 101-02, 275 S.E.2d at 272. The Court explainedfurther: "The statute provides only that no person charged with a criminal offense shall be tried while in the uniform of a prisoner 'by or under the direction and requirement of any sheriff, jailer or other officer . . . .'" Id. at 102, 275 S.E.2d at 272-73 (quoting N.C. Gen. Stat. § 15-176). The Court recently reaffirmed this holding in Smith, 155 N.C. App. at 507, 573 S.E.2d at 623 (rejecting argument that the trial court committed plain error by permitting the trial to begin while defendant was still dressed in his jail uniform when defendant failed to object to his attire at the beginning of the trial).
    Defendant urges that we disregard these prior interpretations of N.C. Gen. Stat. § 15-176 and construe the statute anew. It is, however, well established that one panel of the Court may not overrule another panel. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 384, 379 S.E.2d 30, 37 (1989). Indeed, the Supreme Court has recently reemphasized that one panel's interpretation of a statute binds all subsequent panels. State v. Jones, 358 N.C. 473, 487, 598 S.E.2d 125, 134 (2004) ("While we recognize that a panel of the Court of Appeals may disagree with, or even find error in, an opinion by a prior panel and may duly note its disagreement or point out that error in its opinion, the panel is bound by that prior decision until it is overturned by a higher court.").
    Since defendant failed to object to wearing his prison jumpsuit at trial and since there is no showing that he was otherwise required to wear the jumpsuit, we are bound under Berryand Smith to overrule this assignment of error. Defendant has not brought forth his remaining assignment of error, and it is, therefore, deemed abandoned. N.C.R. App. P. 28(b)(6). In light of the foregoing, we hold that defendant received a fair trial, free from prejudicial error.

    No error.
    Judges WYNN and TYSON concur.
    Report per Rule 30(e).

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