Davis v. State , 1985 Okla. Crim. App. LEXIS 334 ( 1985 )

OPINION

PARKS, Presiding Judge:

The appellant, James Douglas Davis, was charged in the District Court of Payne County, Case No. CRF-81-244, with the offenses of Murder in the First Degree and Burglary in the Second Degree, After Former Conviction of a Felony. He was tried before a jury, and found guilty of both offenses. The jury fixed punishment at death for the murder conviction, and at thirty five (35) years’ imprisonment for the burglary conviction.

On appeal to this Court, appellant raises sixteen assignments of error challenging the judgment of guilt on each of the two offenses, and the sentence of death. However, we will deal with only one of these assignments of error, as we deem it necessary to reverse and remand this case for a new trial.

Appellant’s principal contention arises from the assignment of error that he was improperly tried in leg shackles during both the guilt and punishment phases of trial. Both parties conceded during oral argument that the appellant was so tried. Appellant alleges this procedure was in violation of 22 O.S.1981, § 15, and we agree.

Title 22 O.S.1981, § 15 states that

No person can be compelled in a criminal action to be a witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge, and in no event shall he be tried before a jury while in chains or shackles. (Emphasis added).

In Judge Nix’s landmark opinion in French v. State, 377 P.2d 501 (Okl.Cr.1962), the policy behind this statute was explained. The Court, with Judges John A. Brett and Hez J. Bussey concurring, determined that “two inherent rights [belonging] to all men who come before the bar of justice” are protected by the strict enforcement of this statute.

First, one charged with a crime is entitled to appear in court with free use of his faculties, both mentally and physically....

* * * * * *

The other inherent right intended to be preserved by the Statute was the presumption of innocence that every defendant is cloaked with, until proven guilty ... ‘[A] prejudice might be created in the minds of the jury against a prisoner who should be brought before them handcuffed and shackled, which might interfere with a fair and just decision of the question of the guilt and innocence of such prisoner’, [quoting, 14 Am.Jur. at 855],

Id. at 502-503. See also McQueen v. State, 421 P.2d 284 (Okl.Cr.1966). Subsequent to French v. State, and McQueen v. State, this Court held in Peters v. State, 516 P.2d 1372 (Okl.Cr.1983), that the rights guaranteed by this statute may be waived “if defendant engages in misconduct so disruptive and disrespectful that the trial cannot continue.” Id. at 1374-75. However, in the absence of a waiver, the trial court has no discretion in this matter, and the defendant shall not be handcuffed or shackled during the trial itself.

In this case, the record clearly establishes that the appellant was brought into the courtroom in leg shackles; accordingly, the statute was violated, as this rule presupposes that a defendant has the opportunity to appear before the jury unrestrained. Accord In Re L.B., 645 P.2d 498 at 500 (Okl.1982). The record fails to establish any disruptive or disrespectful conduct on the part of appellant justifying use of shackles. Moreover, there is not a scintilla of evidence that the appellant planned to disrupt the trial. See e.g. In Re L.B., 645 P.2d at 500 n. 1. Appellant was apparently shackled at the direction of the County Sheriff, and no basis for that decision is found in the record. We therefore hold that 22 O.S. 1981, § 15 was violated.

The State argues, however, that appellant was not prejudiced, in that the record fails to establish positively that the jurors saw the shackles during the first stage of trial. He claims that, at worst, the shackles were seen by the jury only in the second stage of trial, as appellant made his way to the witness stand. He therefore argues that any error was limited to the second stage of trial, and the convictions, at the least, should be affirmed. This argument is meritless. As we explained in McQueen v. State:

The trial judge ... [explained] into the record that he believed the defendant was not prejudiced by the handcuffs, in that the jury could not see them. However, there is nothing in the record to substantiate his view from any of the jurors. The trial judge had no control over this. The statute is explicit in stating “In no event.” It does not say that it is permissible if the jury cannot see the handcuffs, or if they are covered with a handkerchief. It says “In no event.”

This Court will not make an exception to the statute. The manacling of a person when upon trial for a criminal offense, whether bringing him into court ... while in the presence of the jury, or at any stage of the trial, cannot be too strongly condemned.

Id. at 287. Error of this magnitude compels us to reverse the convictions herein, and remand the ease for a new trial.¹

Accordingly, the judgment and sentence is REVERSED and REMANDED for a new trial.

BRETT, J., specially concurs. BUSSEY, J., dissents.

1 . Even if the shackling of this appellant had occurred only during the sentencing stage, we would be obligated to modify the sentence, rather than remand this case for re-sentencing. Although the Legislature has recently provided for resentencing of capital cases, see 21 O.S.1985, Supp. 701.13, we have held that application of this enactment to those cases pending on appeal would render the new statute an ex post facto law. Green v. State, 56 O.B.J. at - n. 4 (Okl.Cr.1985).