*1 TERM FALL Billups v. WAYMARE BILLUPS STATE OF NORTH CAROLINA No. 63 January (Filed 1981) — proper to obtain new counsel denial Law 91.4— continuance § 1. Criminal request, just denying made trial court did not err The selection, granted jury in order to have time to that he be a continuance discuss hiring family private he confidencein counselbecause lacked with his attorney. appointed court — no abuse of discretion 2. Criminal Law 98.3— shackled § ordering be restrained in the that defendant trial did not err court shackles, was nomerit to defendant’s and there absent a courtroom the use of showing previously shackling improper that he had tried to escape, planned to show that escape since the evidence tended or evidence of a violence; years appar- old and he was 29 with crimes of defendant was ently him, including charges pending against health; good were other serious previous for he received a 40 to 50 week which an from a conviction provide sentence;only year prison to serve as bailiff and one was available outstanding charging courtroom; him warrant there was a escape jurisdiction. from another instructions suffi- Criminal Law of defendant-curative § 98.3— cient argument that the trial court’s curative There was no merit to defendant’s judge jury since the trial told the instruction on was insufficient department being because the sheriff’s was short- defendant was handed; restrained ofthe nature ofthe nor was reference nomention was made character; asked all whowouldbe unable made to defendant’s record or to overlookthe did; raise their and none and the of defendant to hand judge specifically put the fact defendant’sshackles trial instructed determining guilt. out of their mind in —independ- procedure photographic identification 4. Criminal Law 66.16—§ origin ent of in-court identification weapon, dangerous robbery prosecution assault with a for In a allowing identification of defendant an in-court court did not err in prosecuting by choosinghis witnesses identified witnesses where the by police; among photographs witness had picture them one shown six home; witnesses opportunity him to her when she admitted to see defendant approx- well-lighted room and five minutes in a for at least were with defendant crime; imately twenty of the in their house at the time elsewhere minutes clearly of inde- of defendant was her in-court identification witness stated crime; night entirely pendent origin on her observations on and based like defendant that the intruder looked statement and the other witness’s testimony. properly identification allowed as IN THE SUPREME COURT 5. Criminal Law 71—shorthand statement of fact § *2 statement, failing robbery did a The trial court not err strike victim’s me,” testimony robbed since as a
“that’s when he such was admissible shorthand statement of fact. — jury prosecuting 101— witness in room § 6. Criminal Law no mistrial required denying The trial court did not err in defendant’smotionfor a mistrial made ground prosecuting jury oneof onthe a recess at the conclusionofthe trial but witnesses entered the room court, charge to the ofthe since judge prosecuting determined that the witness knocked at the door of the restroom, room, through jury came the room used the but did not communi- jurors. with cate part Brock took no in the consideration or decision Justice of this case. dissenting. Exum Justice Copeland joins dissenting opinion.
Justice judgments Bruce, ON defendant from entered February Court, Judge, Superior at the 11 Criminal Session County. Perquimans separate indictments,
Defendant proper in robbery form, dangerous crimes with weapon, with the a a 14-87, deadly weapon of G.S. and assault with a violation inflicting injury, kill serious a intent to violation of G.S. 14-32. guilty charges. pleaded not Defendant trial, suppress a Prior to made motion to the victims’ hearing trial, him. identification of After a voir dire at at which the witnesses, presented findings four made of fact and conclusions of law and denied the motion.
At the State’s evidence tended night to show that on the February 1979 Mr. and Mrs. Isaac of 19 Lowe were in their home Hertford, A p.m., North Carolina. little after 9:00 a man knocked renting and asked the Lowes’ door about a room from the Lowes. living him began Mrs. Lowe admitted room where he to talk watching with her husband while she resumed television. After conversation, gun several minutes of the man drew a on the Lowes money. approximately and demanded He removed a $86.00 Lowe, up Mr. picked wallet he took from and also in cash $100.00 lying which on a He go table. then ordered Lowes to upstairs. first, top
Mr. Lowe reached of the stairs retrieved FALL TERM pistol pillow which he had hidden under the on his bed. As the top intruder steps, reached the Mr. Lowe testified he fired hoping away. once at his feet to scare him The intruder fired three Lowe, Mr. wounding times at him in the head and neck. As Mrs. began Lowe help, scream for the intruder fled.
Both the Lowes identified the defendant in court the man as who robbed them and shot Mr. Lowe.
By way rebuttal, defendant offered the of his mother. She stated knowledge that to the best of her her son was not in Hertford at the time of the crimes. Defendant’s sister offered testimony. similar guilty
The charges. returned a verdict of on both *3 defendant imprisonment was sentenced to life for the armed rob- bery years and to a term deadly of ten weapon for assault with a inflicting injury. serious appeals Defendant the life sentence as right; matter bypass Appeals motion to the Court of on the July latter conviction was allowed on 16 necessary,
Where other relevant facts will be discussed in the body opinion. of this Attorney Attorney General L. Edmisten Assistant Rufus Marilyn State-appellee.
General R. Rich for Edwards,
Walter G. defendant-appellant. Jr. for CARLTON, Justice. exceptions brings
From numerous defendant forward assignments prejudicial nine of error. We find no error and affirm.
I. Defendant error in the refusal of the trial court to [1] grant request, just defendant’s made to selection Feb ruary 1980, granted that he be a continuance. Defendant com plained Bruce that he in his court- lacked confidence appointed attorney, and asked he be allowed time to discuss family hiring private Citing with his the counsel. the fact that the October, defendant had been indicted since and thus had had ade quate counsel, Judge request. time to secure other Bruce denied Court, recognizes
Before this that a motion to con- normally tinue is addressed to the sound discretion of IN THE COURT SUPREME customarily for abuse of reviewable judge, and hence 91.1; 3d, Strong’s Criminal Law N.C. Index § discretion. Rigsbee, N.C. 208 S.E.2d though, right is involved as defendant constitutional
Where a
guarantee
of effec
of the sixth amendment’s
here
virtue
claims
counsel,
is deemed on
a motion
continue
tive assistance
law,
question
and is therefore reviewable.
present a
Brower,
(1976). If a constitutional
N.C.
II. assigns the failure of the trial court Defendant as error next objections three made sustain testimony, challenged that she In Mrs. Lowe stated
Mrs. Lowe. hearing good where was on the side was not sure how her husband’s shot; face when she he had that she can still see been *4 money eyes; her and that she let the defendant take closes gun. in his a While defendant be correct because he had places speculative were in or unres assertion that these answers ponsive, nor the record shows that the errors neither the defendant showing prejudicial. a is were material or Absent such Jones, 259, 179 S.E.2d a new trial. not entitled to State (1971). 433
III. [2] By next two assignments error, defendant contends that ordering restrained in the the court erred in that the defendant be shackles, the use of and that the curative instruction courtroom jury by given was insufficient. On its own motion the the court following findings ordering of fact trial court made the before (1) so restrained: that the defendant was the defendant be FALL TERM 611 robbery inflicting kill serious with armed and assault with intent to against injury; (2) charges pending that defendant had other serious previous than him had the week received a sentence of not less and forty fifty years charge; (3) that there nor more than on a different outstanding against escape issued was an warrant for the defendant Maryland; many (4) the State of of the sheriffs because employees special sum- were involved in a venire which had been only County County Perquimans moned from to Dare there was security for the court. sheriff to serve as bailiff and officer findings until those was ordered shackled Based on the defendant deputies might such time as more available. become primary was that Defendant’s contention before this Court Judge within the Bruce’s decision circumstances was based on showing argues that he had courtroom. The defendant previously that absent a escape, escape planned tried to evidence of a ordering be shackled. Bruce abused his discretion in that defendant disagree. We question, recognized as control
The seminal decision on this sides, ling N.C. 226 S.E.2d Huskins, Court, writing presented (1976). an exhaus Justice for the there, analysis of the issue here considered. As stated tive to general criminal case is entitled rule is that a defendant a except appear in extraordi at trial free from all or shackles bonds However, general nary rule does stated in instances. as every trial in shackles is fundamen not lead to the conclusion that tally Rather, against Id. at at “the rule unfair. S.E.2d judge, subject exception in the that the trial discretion, may require the accused to be of his sound exercise prevent escape, protect when shackled such action is during trial.” Id. at in the courtroom or to maintain order others 367, equipped to decide “is best 226 S.E.2d 367. The adopted prevent extent to which measures should be courtroom, escape of the disruption of the harm to those accused, prevention crimes.” United States and the of other denied, Samuel, 610, 615(4th 1970), U.S. Cir. cert. 431 F.2d L. S. Ct. 28 Ed.2d 229 reaching should be to whether a defendant In as decision shackled, including Tolley range serious- a broad of factors “the lists defendant; age charge against present ... ness physical *5 attributes;... escapes;... escapes attempted past or IN THE SUPREME COURT security courtroom; adequacy physical and the nature and availability of alternative remedies.” 290 N.C. at Furthermore, upon information which the S.E.2d at 368. “[t]he formally judge acts need not come from evidence offered and ad- mitted at the trial.” Id. judice,
Applying it that those criteria to case sub is clear Judge properly required Tolley. Bruce framed his order as record shows that the defendant was with crimes of vio- lence; years health; apparently good that he was 29 old and in against pending including other serious were him an previous forty from a conviction the week for which he received a sentence; fifty year only prison was available to courtroom; provide serve as bailiff and and that in. outstanding charging escape there was a warrant him with from jurisdiction. another conviction, argues that because
Defendant a warrant is not a outstanding the existence of an warrant was irrelevant and should not have considered the trial court. of a been While evidence improper purposes warrant to conviction is for certain in a clearly proceeding, criminal rule does not control this situa- escape tion. The existence of such a warrant for from another jurisdiction probable escaped cause to believe the defendant had custody previous propensity from on a occasion. Defendant’s escape overriding determining must be one of the considerations Any whether a defendant should be shackled. reasonable evidence propensity properly of such be considered the trial court on Thus, question. properly this Bruce considered the existence escape reaching of the warrant for his decision.1 proper Defendant’s further that restraint if past planned escape attempt there is evidence of a is also not persuasive. escape trial court need not wait until an or other “[A] presence exercising violence has occurred its before its discre- Johnson, (Ariz. 1979). tion.” State v. 594 P.2d 526-27 Where appears upon there cluded, some reasonable basis which the con- discretion,
in the exercise of his sound
it
that was
Estelle,
(5th
1974)
1InPatterson v.
F.2d
Cir.
the court cited the fact that
outstanding charge
custody
escaping
against
there was an
onefactor
the defendant as
justifying
handcuffing
chaining
prisoner during
ofthe
trial. Id. at
*6
FALL TERM
613
1980
Billups
say,
to be shackled
we cannot
as a
for the defendant
law,
trial
v.
matter of
abused his discretion. State
371,
Tolley,
N.C. at
Thomas v.
McDonald v. United 89 F.2d Cir. IN THE SUPREME COURT recognition gravity
the court’s its decision to shackle the authority defendant. We hold that under the of State v. supra, ordering, the trial court did not abuse its discretion after making findings required sufficient of fact as also Tolley,3 the defendant be restrained.
[3] Defendant’s
that the curative instruction
given by
*7
equally
the court was insufficient is
without merit for two reasons.
First,
jury,4
an examination of
Bruce’s instruction to the
given just
beginning
prior
jury
of
shows that he told the
being
that the defendant was
restrained
because the sheriff’s
department
No mention
was shorthanded.5
was made of the nature
of
reference made
nor was
to defendant’s record or
judge asked all who would be
character. The
shackling
unable to overlook the
the defendant to raise their hand.
of
None did. The trial
jury
put
specifically instructed the
also
the fact of defend
determining
their minds in
guilt.
ant’s shackles out of
This
fully complied
applicable
instruction
with the
tenets of State v.
369, 226
Second,
S.E.2d at
IV. [4] By his next assignment error, complains allowing trial court’s an in-court identification of the defendant prosecuting witnesses. Just to in-court identification crimes, perpetrator witnesses defendant as the a voir hearing light dire testimony of each witness was held. In of their on dire, subsequent voir defendant claims in-court identifica inherently tions were unreliable. they voir dire of the witnesses reveals that first by choosing picture
identified the
photographs
among
six
by police
shown them
on 21 March 1979. Defendant
challenges
procedure
constitutionally
this
as
remiss. We do not
agree.
of photographic
The use
line-up
approved
has been
this
Davis,
511, 227
on
Court
several occasions.
State
290 N.C
S.E.2d
Waddell,
(1975),
S.E.2d293
death
*8
vacated,
904,
3211,
sentence
428 U.S.
96 S. Ct.
Conviction based on
identification at trial follow
ing pre-trial photographic
identification will be set
if
aside
photographic
procedure
impermissibly
identification
sowas
give
suggestive
very
as to
to a
irrepar
rise
substantial
likelihood of
States,
377, 19
able misidentification. Simmons v. United
1247,
(1968). Applying
L. Ed. 2d
A close examination of the voir dire reveals that opportunity Mrs. Lowe had the to see the defendant when she house; admitted him the and that she and Mr. Lowe were with well-lighted him at least five approx- for minutes in a room and for imately 20 minutes elsewhere the house. Mrs. Lowe stated clearly that her in-court identification the defendant was of origin independent entirely and on based her observations that night. Bass, 435, proper. Thus its admission was v. State 280 N.C. COURT IN THE SUPREME
616
v.
State
that the intruder
Lowe’s statement
(1972). Mr.
S.E.2d 384
186
identification
properly allowed as
like” the
“looked
588, 187
Any
Brown,
(1972).
85
N.C.
S.E.2d
testimony.
280
v.
State
weight
goes
not the
and
certainty in his identification
lack
Bridges,
testimony.
266 N.C.
146
admissibility
allowing
properly in
(1966).
the trial court acted
We find
S.E.2d
testimony.
the identification
V.
[5]
By
his next
assignment
error,
defendant contends
the court
failing
motion to strike Isaac Lowe’s
to allow defendant’s
erred
statement,
me....” Such shorthand state
when he robbed
“That’s
See,
e.g.,
upheld
this Court before.
fact have been
ments of
Sneeden,
Goss,
147, 235
(1977);
274 N.C.
S.E.2d 844
State
is without merit.
Defendant’s
S.E.2d
VI.
alleges
trial
committed
The defendant next
that
court
by allowing
purse
introduce a
and its contents
error
the State to
agree
upstairs
While we
found in the
of the Lowe’s home.
case,
apparently
had no relevance to
defendant that
items
Rather,
appellant
“the
must
that alone does not warrant reversal.
positive
rights
tangible,
has
sub-
show error
stantially
affected
and
merely theoretically,
result
not
a different
Cross,
likely
N.C.
S.E.2d
have
would
ensued.” State
(1973), quoting
Cogdale, 227 N.C.
Justice BROCK took no in the consideration or decision of this case. dissenting.
Justice Exum respectfully I majority opinion dissent from the I because order, grounds upon believe there were insufficient which to over objection, his process at trial. The thus denied defendant due of law under Fourteenth I, 19, Amendment the Federal Constitution and Article Section of the State Constitution. process requires persons
Due accused of a crime receive liberty” impartial the “fundamental of a fair and and that persons presumption Drope such Missouri, be afforded the innocence. (1975). implement presumption
of a free and innocent man.” Colo. 488, 492, 174 (1946), quoted Tolley, supra. P. 2d in State v. recognized Supreme As the United States Court in Illinois v. Allen, (1970): contemplate [binding gagging
“But even to de- it, fendant], feeling person much less see arouses a that no gagged except should be tried while as a shackled and possible sight last resort. Not is it shackles gags might significant jury’s have a effect on the *10 COURT IN THE SUPREME Billups defendant, technique the use of this feelings but about the very dignity something and affront to the of an is itself judge seeking that the is judicial proceedings decorum (Emphasis supplied.) uphold.” to Tolley Accordingly, in held a criminal defendant this Court except in appear from shackles extraordi- at trial free entitled to necessary prevent action is to nary where such circumstances courtroom, protect persons in the or to maintain order escape, to determining during in whether such extraor- The trial court trial. dinary exist consider various “mater- do in fact circumstances Tolley, supra.1 ial circumstances.” State here, majority, upholding *11 There is no indication in the record that defendant at the time posed any courtroom, of his person likely a threat in the unruly disruptive, likely try to be or escape. or was All indica- tions things. are that he would do none of these That defendant crimes, with young healthy, recently serious and has been convicted of justify other serious crimes does not the shackles. Although among these are the “material circumstances” in which proper considered, case regularly be try young, our courts healthy defendants who have criminal records and who are on trial offenses;. yet for serious we do not shackle them. These trials include, course, even escaped those defendants who have penal only institutions. That was available cannot be upon justification. seized as a adequate The absence of courtroom staff was problem an administrative which the trial court should not have expense solved at the right of defendant’s to a fair trial.2 telling The most quietly circumstance of all is that defendant sat through previous uneventful trial on other held the prelimary hearing. week and at his appears court,
It thus seeking shortage the trial to solve a deputies problem, simply sponte decided sua to shackle defend- unnecessarily.3 ant county, any representative Neither the state nor reveals,
so far as the record feelings advised the court of insecurity felt restraining need for defendant. The in supra, facts 226 S.E. 2d only the decision rendered propriety this Court as to the unanimously and in approved shackling, which we the significantly sheriff,
are charged different from Tolley those here. In custody
with during expressed opin- defendant necessary. ion that escape during Tolley shackles were In defendant tried to preliminary hearing. Importantly, also in object defendant’s counsel explicitly did not when proper problem 2The solution to this would have been for the trial court to have personnel not, highway patrolmen, possible; secured other such as state if if the trial delayed personnel have should been until sufficient could secured. be jury, pertinent part, thing, 3The court instructed the as follows: “One more gentlemen, you people I ladies and want who are on the venire to also listen to this. you may partially Some of have noticed that the defendant is restrained in that he commonly leg has on what are referred to as shackles or irons. The reason for this is Department County that the Sheriff s has all of its men over in Dare and there is one sheriff who can serve as Bailiff and also act as officer for the courtroom.” IN THE SUPREME COURT Thus, Tolley while so. we noted if he wished to do asked offenses, young charged and was serious condition, were good physical “material circumstances” these clearly secondary prelimi- prior escape attempt objection nary request, hearing, and the lack of sheriffs himself, through counsel. always Tolley is that while does not thrust of law, right process is a to due under it violate a defendant’s extraordinary simple remedy only in situations. The to be used there of the “material circumstnces” mentioned existence of several extraordinary automatically shackling. Only justify does not *12 together event these circumstances with other actions that expressed charge of his himself concern those or custody shackling pre- prosecution is to or indicate courtroom, escape, protect persons in the vent to to maintain remedy damaging so the trial’s order should impartiality be used. showing
Finally, majority prejudice “no has notes that any.” however, us, Court, presented perceive This nor do we been therefor, necessity showing “in has the absence of a stated inherently compelling shackled is the defendant stand while prejudicial infringes upon presumption inno in that it so just question with a cence that it ‘interferes fair and decision guilt (Emphasis supplied.) . . . of supra, or innocence.’” at 367, at 366, 226 quoting Blair S.E. 2d v. Common wealth, Ky. 319, The state con 188 S.W. shackling improper if the error cured tends that even the by was My judge’s if the the trial instruction. view that justified place not error be cured instruc first cannot integ great dignity jury. tions to the We do a disservice rity permit courts we the needless of criminal our when I at which he will not defendants. vote for a new trial for defendant be shackled unless the circumstances then are such required. joins Justice COPELAND in this dissent. in the notes violence, years charged with was 29 old crimes recently health, good been convicted on other and in and had term; lengthy prison to a and sentenced security; provide for courtroom and that was available Maryland outstanding charging warrant from defend there was an escape penal respectfully I from a institution. submit the ant with simple justify shackling of all the factors listed does not existence in without some other indication that fact courtroom, persons prevent escape, protect his recognize doing I order trial. In so or to maintain propriety originally entrusted discretion of inherently Although trial flexible, the abuse of discretion standard is court. by this it is not without limits. As noted Court judicial ‘a discretion that is not exercised “sound discretion means arbitrarily wilfully, regard right equita or but with to what is and law, and directed the reason ble under the circumstances and just supra, and conscience of the to a result.’” State v. Green, 349, 367, 226 367-68, quoting Langnes S.E. 2d my opinion It is that the trial court here judicial exceeded the limits of sound discretion. judge may Tolley: 1Asnoted in “The ‘material circumstances’ which the trial include, alia, exercising his discretion inter of the consider sound seriousness defendant; character; present charge against temperament and attributes; records; age physical past past escapes attempted escapes, and disturbance; present plan escape; harm evidence of a threats to others or cause a tendencies; attempted revenge self-destructive the risk of mob violence or of others; large; possibility of rescue Other offenders still at the size and mood of audience; courtroom; physical adequacy the nature and and the availability N.C. at S.E. 2d at of alternative remedies.” 290 FALL TERM 1980