Lead Opinion
Aрpellant was indicted for felony murder in the commission of an aggravated assault, criminal attempt to violate the Georgia Controlled Substances Act by selling cocaine, and two counts of possession оf a firearm during the commission of a crime. He was tried before a jury and found guilty of all counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.
1. The first enumeration of error urges that the trial court “erred by conducting the trial . . . while appellant was restrained by leg chains.”
Appellant objected to being tried while in restraints. However, “[a]t trial, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. [Cit.]” Gates v. State,
or attempt to refute the information on which the [trial] court acted. In these circumstances, [appellant] may not now complain that he was denied “an adequate opportunity” to be heard on the issue, or that his shackling was unnecessary.
Moon v. State,
Appellant makes the further argument that, even if his physical restraint was otherwise аuthorized, the trial court nevertheless erred in failing to charge the jury that his placement in such restraint should not be considered in determining his guilt. The record reflects that no request was made by appellant for such instruсtions. “Counsel cannot sit by and permit some matter they could correct by timely action and later clаim error.” Harris v. State,
While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on . . . the failure to give instructions to the jury ([cit.]) this does not relieve him from the necessity of requesting instructions, . . . except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for dеtermining guilt or innocence.
Spear v. State,
2. Appellant enumerates the general grounds.
Appellant admitted fatally shooting the victim while negotiating the sale of cocaine. Although appellant also testified that the victim had first attacked him with a knife and that he had only fired the shot in self-defense, no knife was ever found in the victim’s possession or at the scene. Eyewitnesses to the events testified that they saw appellant shoоt the victim but did not see the victim make any aggressive initial move against appellant. This evidence was suffiсient to authorize a rational trier of fact to find proof, beyond a reasonable doubt, of aрpellant’s guilt of the crimes he was charged with committing. Jackson v. Virginia,
Judgments affirmed.
Notes
The crimes were committed on February 22, 1993. Appellаnt was indicted on May 10, 1993. The guilty verdicts were returned on July 7, 1993. Appellant filed his notice of appeal on July 27, 1993. The case was docketed in this court on August 10, 1993 and was submitted for decision on September 24, 1993.
Concurrence Opinion
concurring.
I write separately to bring to the attention of the bench and bar the standards regarding restraint of defendants which have been set
[defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, the trial judge should enter into the record of the case the reasons therefоr. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge should instruct those jurors that such restraint is not to be considered in assessing the proof and determining guilt.
3 ABA Stаndards for Criminal Justice, § 15-3.1 (c) (2d ed. 1980).
Although the trial court did not state on the record his reasons for ordering restraints or instruct the jury regarding consideration of the restraints, however, I must agree with the majority that no reversible error was committed under Georgia law.