Stephen Nichols v. State ( 2022 )

THIRD DIVISION
DOYLE, P. J.,
REESE, J., and SENIOR APPELLATE JUDGE PHIPPS
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
May 11, 2022
In the Court of Appeals of Georgia
A22A0667. NICHOLS v. THE STATE.
PER CURIAM.
A jury found Stephen Nichols guilty of aggravated assault and other crimes.
Nichols appeals from the denial of his motion for new trial, arguing that the trial court
erred by requiring him to be handcuffed during a portion of the trial.1 For the reasons
that follow, we affirm.
1
We note that Nichols filed a pro se “reply brief” seeking to raise several
additional claims of error. However, Nichols was represented by counsel at the time,
and this Court “only consider[s] the enumerations of error and brief presented by
counsel when a party is represented by counsel on appeal.” Peterkin v. State, 222 Ga.
App. 329, 330 (1) (474 SE2d 231) (1996). Moreover, to the extent Nichols seeks to
raise additional enumerations of error, “an appellant who raises an argument for the
first time in a reply brief is not entitled to have that argument considered.” Williams
v. State, 307 Ga. 689, 689, n. 2 (838 SE2d 314) (2020) (citation and punctuation
omitted).
Viewed in the light most favorable to the verdict,2 the record shows that one
afternoon in April 2017, officers were dispatched regarding a domestic dispute
between Nichols and his girlfriend. A sergeant located Nichols in the woods behind
the girlfriend’s house. While they were talking, Nichols aimed a revolver at the
sergeant and fired. Nichols and the sergeant then exchanged multiple shots, and at
one point, Nichols was shot. Although Nichols fell to the ground, he rolled on his
stomach and continued to point his gun at the sergeant, saying, “kill me.” Nichols was
eventually disarmed and arrested. The officer who searched Nichols incident to the
arrest found a sunglasses case in his pocket containing methamphetamine,
hydrocodone, and alprazolam.
At trial, the State presented the foregoing evidence and played video of the
entire shooting incident recorded by the sergeant’s body camera. The jury found
Nichols guilty of aggravated assault on a peace officer, two counts of possession of
a firearm during the commission of a felony, two counts of obstruction of an officer,
possession of methamphetamine, possession of hydrocodone, possession of a
2
Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).
2
Schedule IV controlled substance, possession of a firearm by a convicted felon, and
possession of a firearm by a convicted felon during a crime.3 This appeal followed.
In his sole enumeration on appeal, Nichols contends that the trial court erred
by requiring him to be handcuffed during a portion of the trial. We disagree.
The record shows that at the beginning of the third day of trial, the trial court
held a bench conference outside the presence of the jury concerning a statement that
Nichols had made to a deputy. The court questioned the deputy, who confirmed that
Nichols had commented to him: “If I act out in court, just shoot me in the head.” The
court then noted that in determining how to address the comment, it was considering
the charges against Nichols – which included aggravated assault against an officer –
as well as “some of the upset that occurred . . . with counsel” at a previous
proceeding, and Nichols’s “agitation” during the presentation of evidence the day
before. The trial court then announced that
primarily, based on the comment made, I just have made a decision that
Mr. Nichols should be restrained. I just do not want to take a chance at
his acting out. If he was just making a comment, so be it. But I feel like
3
The trial court granted a directed verdict of acquittal on one count of
possession of marijuana, and the jury found Nichols not guilty on the counts related
to the domestic dispute: one count of aggravated assault, possession of a firearm
during the commission of a felony, terroristic threats, and simple battery.
3
the safety of the occupants of the courtroom, including [defense counsel]
who are sitting right there at the table with him and the court reporter
who is here in front of me, the safety of all of them outweighs any
inconvenience to Mr. Nichols.
Following this ruling, the court instructed Nichols’s counsel to “position a box
or something in front of Mr. Nichols so that [the jury] do[es] not see the handcuffs,”
noting that if Nichols chose to put his hands above the table, “perhaps [the jury] could
see the handcuffs. But if they remain in his lap as they are at the moment, there’s no
way the jury can see them at all.” When defense counsel expressed concern that the
jury might be able to see the handcuffs when Nichols stood, the following exchange
took place:
THE COURT: I’m going to find a file box or something to put in front
of him so that if he stands up, that his wrists are not shown, and when he
sits back down you can take the box down and he can keep his hands in
his lap just like they are right now.
THE BAILIFF: Your Honor, if I may say, he has a belly chain on right
now. We can remove the belly chain where it’s just the handcuffs. That
way the orange belt is not visible.
DEFENSE COUNSEL: What I was going to suggest is that we do ankle
chains instead, because the jury definitely won’t see that. I mean . . . I
4
can kind of move a little bit so he can be sitting closer to under the table.
I can even move to the other side of the table. I just think that that would
be a better –
THE COURT: I think – I’ve thought about this. If we can just position
a file box or something in front of him, and [defense counsel], as soon
as Mr. Nichols sits down, you can just remove the box, and there’s no
way they can see his wrists if he keeps them in his lap as he does right
now.
The trial court then granted the defense’s request to remove Nichols’s belly chain,
and gave counsel the option to stay seated when the jury came into the courtroom, “as
a way to further conceal the restraints.” Defense counsel responded that staying
seated was preferable to standing, checked the view from the jury box to determine
whether the jurors would be able to see the handcuffs, and then agreed to have the
jury brought in to resume the trial.
“It is well established that no person should be tried while shackled except as
a last resort.” Hill v. State, 308 Ga. 638, 644 (2) (a) (842 SE2d 853) (2020)
(punctuation omitted), citing Illinois v. Allen, 397 U. S. 337, 344 (I) (90 SCt 1057,
25 LE2d 353) (1970). Yet, “it is not necessarily an error of constitutional dimensions
for an accused to appear in court wearing restraining devices[.]” Collins v. State, 164
5
Ga. App. 482, 484 (4) (297 SE2d 503) (1982). “[W]hen, in the discretion of the trial
judge, the use of restraining devices . . . is necessary for preventing disruptive or
dangerous behavior by the accused or for securing the safety of those in the
courtroom, or of the general public, the decision to implement such measures is
within the court’s discretion.” Id. On appeal, we review the trial court’s decision to
use restraining devices for an abuse of discretion, and we defer to a trial court’s
determinations about courtroom security as long as the record contains factual
findings sufficient to justify the court’s decision. See Dennis v. State, 170 Ga. App.
630, 632 (3) (317 SE2d 874) (1984). See also Hill, 308 Ga. at 644-645 (2) (a).
Here, the trial court made case-specific findings supporting its decision to
handcuff Nichols. In doing so, it considered Nichols’s comment in light of the
charges against him and his previous behavior in the courtroom, and concluded that
the comment caused “sufficient concern for the safety of everyone in the courtroom.”4
4
Nichols asserts that he “was not given the opportunity to contest the validity,
context, or meaning of the statement that formed the basis for his being shackled
during trial.” However, Nichols neither refuted the information on which the court
acted nor requested a hearing, even though he had ample opportunity to do so while
the parties discussed the logistics of concealing the handcuffs– a discussion that fills
about six transcript pages. “In these circumstances, the defendant 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, 258 Ga. 748, 755 (12) (b) (375 SE2d
442) (1988) (punctuation omitted). Compare Elledge v. Dugger, 823 F2d 1439, 1450-
6
Moreover, the trial court also made efforts to balance its need for security measures
with Nichols’s constitutional rights by considering less visible measures, and even
granted defense counsel’s request to remove Nichols’s belly chain to make the
restraints less conspicuous. Although Nichols asserts on appeal that the handcuffs
impeded his right to participate in the trial by restricting his ability to write notes or
point at documents, there is no evidence of such in the record, and Nichols never
raised that objection at trial. “A party cannot during the trial ignore what he thinks to
be an injustice, take his chance on a favorable verdict, and complain later.” Whatley
v. State, 270 Ga. 296, 302 (14) (509 SE2d 45) (1998) (punctuation omitted). Under
these circumstances, we cannot say that the trial court abused its discretion. See Potts
v. State, 259 Ga. 96, 100 (3) (376 SE2d 851) (1989) (no error where trial court
determined from the information before it that shackling was justified).
Finally, even assuming that an unconstitutional shackling occurred, any error
in the trial court’s decision was harmless beyond a reasonable doubt. See Hill, 308
Ga. at 647 (2) (b) (“On direct appeal where unconstitutional shackling has occurred,
1452 (VI) (11th Cir. 1987) (defendant was denied a reasonable opportunity to
challenge the information that served as the basis for the shackling where he asked
permission to “say something” after the trial court announced its ruling, but the trial
court denied the request).
7
there is a presumption of harm that can be overcome only upon a showing by the
State that the shackling was harmless beyond a reasonable doubt.”) (punctuation
omitted). Here, in addition to the sergeant’s testimony, the State presented video
evidence of his encounter with Nichols, which occurred during daylight hours in clear
weather. The evidence of Nichols’s guilt was overwhelming. Further, there is no
evidence that the jury ever saw Nichols’s handcuffs, or even knew that he was
restrained. Indeed, at the motion for new trial hearing, the State called two jurors as
witnesses who both testified that they did not know that Nichols was handcuffed
during trial, and that his being handcuffed never came up during jury deliberations.5
Given the overwhelming evidence and the jury’s lack of knowledge concerning
Nichols’s handcuffs, we cannot say that his shackling contributed to the verdict.
Compare Hill, 308 Ga. at 647 (2) (b). Accordingly, any error in requiring Nichols to
be handcuffed was harmless beyond a reasonable doubt. See Council v. State, 297 Ga.
App. 96, 97 (676 SE2d 411) (2009) (finding the presence of restraints harmless
beyond a reasonable doubt where there was no evidence that the jurors could see the
5
Although Nichols argues on appeal that there “can be no guarantee . . . that
none of the other ten jurors observed the shackles for the entire remainder of the
trial,” he “has the burden of showing the safety and security measures caused a
violation of his constitutional rights.” Brown v. State, 240 Ga. App. 321, 323 (2) (523
SE2d 333) (1999).
8
restraints from the jury box, and the trial court took measures to keep the jurors
unaware of the restraints). See also Morman v. State, 356 Ga. App. 685, 691 (1) (848
SE2d 165) (2020) (appellant failed to show that his restraints interfered with his
ability to receive a fair trial where the record showed that the restraints were not
visible to the jury and the jury was not otherwise made aware of them).
Judgment affirmed. Division Per Curiam. All Judges concur.
9