*1 489 controlled participating line self on the putting and [her] reject Clark’s asser- McKenzie, 684. We further supra purchase.” that contra- for the belief did not state a basis the affidavit tion that in the affida- officer stated attesting The in the motel room. band was was made after of cocaine purchase a controlled vit motel, statement alone at the met with Clark “[t]his informant drugs and marked the conclusion basis for provided a substantial Id. at 685. There- found probably be [Cit.]” bills would [room]. suppress, motion to denying Clark’s fore, did not err merit. are without numerous contentions and Clark’s concur. Birdsong, Cooper, Judgment affirmed. March Decided denied March
Reconsideration Lancaster, Peevy, Donn M. Peevy & Miles, Assistant Porter, Attorney, R. Keith District Daniel J. PACE v. THE STATE. A93A1718. 307)
(442 SE2d Cooper, felony obstruction guilty by
Appellant was found and sentence. his conviction correctional officer inmate, from an al- arose charge against appellant, in which a correctional officer between tercation At cleaning fluid in the officer’s face. threw a container of cup milk mixed with water appellant contended he threw a him. The trial court harassing the officer was officer because over irons and a handcuff objection. defense counsel’s ordering Appellant contends the trial court’s impartial him a fair and trial. As irons denied App. 7 Mapp
this court noted accused, (1990): while “It is well established that shackles guilt should be free of indicia security personnel, by uniformed prison garb, being or surrounded that he is might infringe else that offense on a A for a criminal ... tried innocent. law, appear- to make plea entitled at common guilty of not rule, This is also the or bonds. ance free from all shackles im- a fair and important component of recognized as an right is omitted.) Mapp, supra at 7. (Citations punctuation partial trial.” cause, good and dis- “At where there is sufficient court has in requiring a defendant to be handcuffed or shackled for se- cretion test curity appeal reasons. Abuse of discretion is the where re- (Citations straining been devices have used court.” (3) omitted.) restraining “While the use devices does not amount *2 dimensions, holding to error of . . . the cases error constitutional no of such have presented was tailed, the use devices relied on de- support demonstrable set forth in the record to the evidence infringement by on the the court defendant’s of inno- State, (2) (375 Martinez v. cence.” case, prior In this selection jury, to of the defense counsel ob- appellant to jected “leg to and cuffs.” court irons The trial heard from administrative appellant assistant who stated that was considered “assaultive” and prior escape prosecutor had a conviction. informed the that court appellant had been convicted assault on officer ob- appel- struction correctional officer. Defense counsel noted that had not escaped assignments lant from recent to road crews. evidence, however,
There appellant is no that “threatened any officials, with struggled guards, Mapp, of the or jurors.” court 8; Martinez, supra “Likewise, at see supra nothing at 72. there is any stage appellant the to reveal that at trial became disruptive require appel- so as to the use of shackles. The denial of request upon lant’s to appellant’s pre- remove shackles was based [s], opinion vious conviction . . . and the held law enforce- authorities, any specific ment not justifying actions Mapp, supra Furthermore, restraint.” at there was no that evidence appellant attempted from While the trial. there was evi- there also evidence that he given had since been work outside details which he had not es- caped. specific
Because the any record does not reveal actions of restraints, justifying shackling use of “we determine that the appellant, which throughout injected continued infringed upon appellant’s into the presumption of innocence prevented fundamental fairness which attends trial jury.” Mapp, supra 8; see also Hicks v. 82) (1991) (physical precedent only). Accordingly, we find requiring appellant leg abused its discretion in and we case for trial remand this a new trial. further the trial
We
note that
court did
instruct
in assessing guilt
the use of
not be
restraints
should
considered
such
be
request
innocence. Defense counsel did not
an instruction
recently held that
it is
Supreme Court has
jury, and the
given to the
if
an instruction
error to fail to
such
not reversible
request. See Kitchen
2. In of our Division light pellant’s remaining enumerations of error. Smith, J., Beasley, P. concurs
Judgment reversed. concurs. specially. concurring specially.
Beasley, Presiding Judge, I in Division 1 that concur Division and with the conclusion that, unconstitutionally It shown defendant was restrained. was not maintained, order to be defendant had be restrained at with irons and a handcuff on the hand he would not need for writing. the record to show that these measures in any way keeping were minimized in front of the de- jury’s presence. fendant seated with irons out of view the *3 in necessary. Nor is it shown that a handcuff was indicating guards would not be sufficient security, power to assure order the court has which of course preserve and enforce. OCGA 15-1-3 § record, Although including aggravated as- long defendant had a (one battery sault and on officers in 1986 was fingers lost two and one 1985), 1989, in in stabbed had struck an officer with his fist had set 1986, month, fire to his damaged jail bed his cell that same 1986, jail years previ- and had once in 1985 or some six ously, appearance in leg created his irons and hand- outweighed perceived cuffs this case need which the record potential does not substantiate insofar as behavior at trial is con- cerned. There was no recent or immediate behavior in, “good present e.g., which created the and sufficient cause” found (1984), none of his violence had occurred court. Neither had the been from court. Nor does the record show that order and could not have been assured some other less restrictive means protected which would have of innocence. The strong inference-producing and handcuffs were silent but evi- against it. record, here, developed The circumstances at least as do writer’s good constitute the and sufficient cause which this v. Reid 646) (1993) (Beasley, specially). 1994. Decided March McCullough, Hugh Cowart & McCullough, J.
Dupont Cheney, K. Attorney, Durden, J. Thomas Assis- tant District
A93A1976. HEARST THE STATE.
Andrews, from the denial of his motion for new trial after his conviction of three counts each robbery of armed burglary, two aggravated assault, counts of and one count aggravated each of sodomy rape. verdict, Viewed favor of the the evidence showed three inci- involving
dents young women in apartments. their D. M. staying was with a friend at Post Bridge Apartments on Terrell Mill apartment Road. The was on the ground floor. She asleep was on room couch around 4:00 a.m. when she heard a noise the bedroom. Thinking her friend was home, she looked into the bedroom and saw figure climbing in the window. lamp There was a the bedroom. The man had on a cap baseball her, when he saw he ducked his pulled head and cap down over his face. He was carrying gun pointed it at her. grabbed her, He lamp made her turn the off and told her to him all her money. He also her go through made jewelry box in the bed- room and would not apartment. touch gave She him the one dollar she had. The hat he had “Miami Univer- sity” on it. She advised him her friend would be there soon and he told her he was going perform sodomy an act of on her and then he would leave. She perform refused to another requested by act and he got up, put condom, on a raped her. He then forced her *4 into the kitchen and get made her out a bottle of managed vodka. She grab a blanket off of the couch and ran out apart- the door of the ment. D. M. described tall, early assailant as in his twen-
ties, with a thin moustache and the Miami hat. She identified photographic from a array person before trial and trial. J. Y. and her sister M. K.
Laurel Valley Apartments on Terrell Mill Road. J. Y. just arrived