Weldon v. State

297 Ga. 537FINAL COPY
S14G1721. WELDON v. THE STATE.
HINES, Presiding Justice.
This Court granted a writ of certiorari to the Court of Appeals in Weldon
v. State, 327 Ga. App. 862 (761 SE2d 421) (2014), to determine if that Court
properly addressed Brian Eugene Weldon’s claim that the trial court violated his
Sixth Amendment right to a fair trial by ordering that he appear at trial wearing
an electronic shock device as a security measure. Finding that the Court of
Appeals did not err, we affirm that Court’s judgment.
Weldon was tried before a jury and convicted of twelve counts of armed
robbery and other crimes. Shortly after Weldon’s case was called for trial, his
counsel informed the court that Weldon “indicated this morning that he doesn’t
feel comfortable going forward to trial,” and that this mindset was related to
“defenses that he would have, given the facts of this case.” The court reviewed
the history of the case, and indicated the trial would go forward. Then, as noted
in the opinion of the Court of Appeals,
[t]he trial court . . . addressed Weldon:
Now, further, not only at previous hearings but also
today, I see you looking around a lot. You don't seem
to be looking up here or [at] anybody else very much,
but you seem to be looking around a lot. You're looking
to the door when people come in. You seem to be more
concerned with what's going on around you than
what—with what's going on with your case. I've noted
that before today. I've noted that today as well. Based
on the nature of the charges and the risk you're facing
of a life sentence for any one of the [twelve] armed
robberies, with a similar transactions pending, a
[forty]-year sentence out of DeKalb,1 and a
[twenty]-year rejected offer, the [c]ourt finds that it is
necessary in order to conduct a safe and orderly trial in
this matter without you making a go for the door,
which it appears to me that you may be considering
based on your looking to the door more than you look
up here, that I am going to have you with an electronic
belt on. . . . [The deputies are] going to go over that
with you here, shortly. But that will allow us to need
[fewer] deputies in the courtroom. You're facing
significant risks[,] and your attention seemed to be
elsewhere during all of the proceedings before today. .
. . [This was not at the State's] request, but it's based on
my observation of you coupled with the nature of the
charges and coupled with the other issues in the case. I
think it's necessary to do that to [ensure] that we have
a safe and orderly trial without this being a field trip for
you, to try to get out the back door. . . . The belt will
not be visible to the jurors. The jurors will not see a
belt on you; that would be prejudicial. . . . If you make
any runs for the door, the jurors will very quickly be
aware that you have a shock belt on, so you will be
1
See Weldon v. State, 328 Ga. App. 163 (761 SE2d 566) (2014).
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advised as to the type of things that would cause that to
be activated.
Id. at 865. The electronic shock sleeve to which the court referred was a
“BAND-IT brand shock sleeve” that could be fitted around one of Weldon’s
limbs; if activated by the deputy certified in its use, it would transmit a shock of
50,000 volts to Weldon, immobilizing him and possibly causing him to urinate
or defecate. Id. at 866.
The court discussed with counsel the evidence that would be presented,
recognized that Weldon would need to move about the courtroom, and stated:
Mr. Weldon, when it’s time for you to go over to the front
pew over near the door to review evidence, I’ll make sure that I
authorize any movement within the courtroom. That’s going to be
necessary on several occasions. So we’re going to make every
effort to make sure that we have advance notice from the State that
it’s about to happen so the deputies can make a move over there,
and then Mr. Weldon can make a move with his attorney to the
front pew to observe any evidence. Because of the way the
courtroom’s set up, that’s going to require him to move in order to
view all of the evidence that he’s entitled to see during the course
of this trial.
Weldon was then sent out of the courtroom to dress in appropriate attire
and for the shock sleeve to be placed upon him. However, Weldon refused to
dress for trial or allow the shock sleeve to be fitted. After his counsel had
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conferred with him, counsel stated:
He reiterated the previous issue, that he said that he didn’t feel that
he was ready to go to trial. He indicated that — and this is with his
permission — I told him that I was going to communicate this to
the court, that he does not want to come out for trial with the shock
sleeve on. And I indicated to him what the options are, that the
court has avail[able] to him: to go forward without him in the
courtroom; to do some other options, if the court deems that that’s
a possibility. He said he didn’t care. He also wanted me to
communicate to the court that it would be his desire to have the case
continued for another two weeks.
Counsel also stated that “he’s refusing to come into the courtroom based on the
conditions that have been set by the court’s order which is to have the sleeve on
and all that.” The court clarified: “I thought I heard you say also that he was
refusing to come into the courtroom because he did not want to go forward with
the trial. . . . He wanted to continue it.” Counsel agreed with the court that it
was not merely the court’s decision to place a shock sleeve on Weldon that was
causing him to refuse to dress and appear for trial; counsel also stated that he
“vigorously object[ed]” to the trial court’s requiring a shock sleeve.
Weldon was then brought before the court, in shackles, and the court
addressed him regarding this choice; the court said that it had “to make
additional arrangements for security in this case based on your lack of
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cooperation with the Sheriff’s Department and your attitude. Since I decided to
do that, it is clear that my concerns — at this point, you’ve basically validated
them, sir.” The court also inquired of Weldon what alternative to a shock sleeve
he might suggest, and he responded that it was “just common sense that I
wouldn’t want to do nothing [sic] like [attempt to flee through the door].” The
court also questioned a deputy regarding attempts to place the shock device on
Weldon, and the behavior that precipitated the court’s decision; the deputy
confirmed that deputies had to instruct Weldon to look forward in the courtroom
rather than toward the gallery and exit door.
Weldon reiterated that he would not participate in the trial while wearing
the shock sleeve, and the trial court informed him that the trial would then
proceed in his absence. After a further recess, Weldon agreed to wear the shock
sleeve during the trial. A deputy informed Weldon about the operation of the
shock sleeve and presented him with an information form that prominently
stated: “This apparatus will NOT be activated for simply consulting with legal
counsel.” Weldon refused to sign the form, although his counsel signed it.
When Weldon appeared before the court appropriately dressed and wearing the
shock sleeve, the trial court again assured him that he would be able to move
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around the courtroom to view the evidence without the risk of being shocked.
The trial then proceeded to jury selection; the shock sleeve was around
Weldon’s arm and it is uncontroverted that at no time during the trial was the
fact that he was wearing the device apparent to the jury. And, at no time during
the proceedings did Weldon assert that the presence of the shock sleeve on his
arm had an adverse effect on his ability to confer with counsel or his ability to
focus on the trial. 2
As this Court has stated:
Although it is well settled that a defendant is entitled to a trial
free of partiality which the presence of excessive security measures
may create, it is also as well established that the use of
extraordinary security measures to prevent dangerous or disruptive
behavior which threatens the conduct of a fair and safe trial is
within the discretion of the trial court. [Cit.] We have previously
held that utilization of a remedial electronic security measure
shielded from the jury's view is permissible where the defendant
fails to show that he was harmed by its use. [Cit.]
Young v. State, 269 Ga. 478, 479 (2) (499 SE2d 60) (1998) (overruled on other
2
After the jury was selected, through counsel, Weldon asked the court to reconsider its ruling
that he be required to wear the shock sleeve, stating that “it is excessively binding and in some ways
painful”; Weldon referred to “the distracting nature of the pain,” but raised no argument that the
asserted distraction affected his ability to consult with counsel or focus on the trial. The court
directed deputies to see if the device could be made more comfortable during the break prior to
opening statements, and observed that with the device on, Weldon appeared to focus more on the
proceedings than he had done without it.
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grounds, Whitehead v. State, 287 Ga. 242, 249 (2) (695 SE2d 255) (2010)). As
noted, there is no evidence that the shock sleeve was apparent to the jury, and
Weldon fails to show that he suffered any harm arising from adverse jury
partiality created by the shock sleeve, or that the court abused its discretion in
finding a necessity for it to be worn. See Nance v. State, 280 Ga. 125, 127 (3)
(623 SE2d 470) (2005).
Nonetheless, during the hearing on the motion for new trial, Weldon
contended that during the trial he feared being shocked by accident, and that this
fear interfered with his ability to focus on the trial. However, as noted above,
at no time during the course of the trial did Weldon claim that the shock sleeve
was causing him any such inability. Of course, “a party can not during the trial
ignore what he thinks to be an injustice, take his chance on a favorable verdict,
and complain later.” King v. State, 286 Ga. 721, 722 (690 SE2d 852) (2010)
(Citations and punctuation omitted.) Failure to raise the issue deprives the trial
court of the opportunity to take appropriate remedial action and waives appellate
review of any alleged impropriety.3 White v. State, 281 Ga. 276, 280-281 (5)
3
We note that Weldon’s trial occurred in 2010, and thus, does not fall under the new
Evidence Code, effective January 1, 2013. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d
377) (2012), noting that plain error review is limited under the pre-2013 Code.
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(637 SE2d 645) (2006). Accordingly, the Court of Appeals did not err in
affirming the trial court on this ground.
Judgment affirmed. All the Justices concur.
NAHMIAS, Justice, concurring.
I join the Court’s opinion in full. Before a trial court requires a criminal
defendant to wear an electronic shock device as a security measure in the
courtroom, the court must: (1) explain why such an extraordinary security
measure is needed to protect the safety and decorum of the proceeding and those
participating in it; (2) consider alternative ways to address that need; (3) ensure
that the defendant is aware of the operation of the device and, in particular, what
conduct by him may lead to a shock; and (4) provide an opportunity for the
defendant to address these matters and present any other concerns about use of
the shock device. See Nance v. State, 280 Ga. 125, 126-127 (623 SE2d 470)
(2005).
Although more detailed discussion may have been preferable, the record
in this case shows that the trial court sufficiently addressed these matters and
articulated reasons supporting its ultimate exercise of discretion to require
Weldon to wear a concealed shock device during his trial.1 The record also
shows that before and during the trial, Weldon did not identify any alleged
shortcomings in the court’s findings or ask the court to consider any claim that
the device was impairing his ability to confer with counsel or to focus on the
proceeding, and he thereby forfeited his right to raise such objections on appeal.
This case is therefore distinguishable from the federal case on which Weldon
principally relies, United States v. Durham, 287 F3d 1297 (11th Cir. 2002),
where the defendant filed a pretrial motion to prohibit use of a shock belt,
asserting that the device would interfere with his rights to confer with counsel
and to participate in his own defense, and requested an evidentiary hearing to
address “a number of other questions relating to the operation and physical
effects of the stun belt,” including “information about the error rate of the
device, the criteria for triggering the belt, medical evidence that the shock would
1
To the extent that the Court of Appeals has read our cases as not requiring a trial court to
make any findings on the record regarding use of a shock device, see Lovelace v. State, 262 Ga. App.
690, 697 (586 SE2d 386) (2003), I believe that reading is erroneous.
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cause no long-term physical damage to the recipient, and information on the
training of the deputy with responsibility for activating the belt,” which the
Eleventh Circuit held that the trial court did not then sufficiently address on the
record. Id. at 1301-1302, 1307-1308.
Having reviewed the case law and the parties’ arguments on this topic,
however, I believe three additional points are worthy of mention. First, although
one of this Court’s cases might be read to suggest that the trial court can simply
“defer[ ] to the sheriff in such security matters,” Brown v. State, 268 Ga. 354,
359 (490 SE2d 75) (1997), I think it is clear that the court must ultimately
determine for itself the need for extraordinary security measures and what
measures to employ. In other words, the court may properly take into account,
but may not defer entirely to, the views of the law enforcement personnel who
are responsible for securing the courtroom but are not responsible for securing
the defendant’s constitutional rights. The trial court in this case acted properly
in this regard.
Second, in considering alternative measures, the court and the parties
should recognize that certain security measures may have different potential
effects on different rights of the defendant. Thus, for example, the use of a
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concealed shock device poses less risk that the jury will prejudicially perceive
the defendant as dangerous, when compared to the use of more visible security
measures like guards or shackles — but the shock device may pose a greater
risk to the defendant’s ability to consult with counsel and to focus on the
proceeding. Thus, whether a particular security measure should be deemed a
“less restrictive alternative” than another measure depends on what rights the
defendant asserts as well as the particular circumstances of the case.
Finally, and relatedly, the test this Court once applied to a claim regarding
use of shock device — whether it was ““‘so inherently prejudicial as to pose
an unacceptable threat to [the defendant’s] right to a fair trial,”’” Young v. State,
269 Ga. 478, 479 (499 SE2d 60) (1998) (citation omitted), overruled on other
grounds by Whitehead v. State, 287 Ga. 242, 249 (695 SE2d 255) (2010) — is
properly applied only to determine whether conspicuous security measures, like
an allegedly excessive number of guards, affected the defendant’s Sixth
Amendment right to a fair trial, as in the case from which Young quoted,
Chancey v. State, 256 Ga. 415, 434-435 (349 SE2d 717) (1986). Use of a
properly concealed shock device will never meet that test — but the analysis
should not end there if the defendant claims that the shock device also violated
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his Sixth Amendment right to counsel or his due-process-based right to be
present at trial. See Brown, 268 Ga. at 359-360 (stating that “accepting the
analogy to shackling, [a shock device] is prejudicial to a defendant only when
visible to the jury,” citing cases akin to Chancey, but then going on to address
and reject the defendant’s “contention that the device nonetheless had a
detrimental psychological effect on his ability to participate in the trial”). In this
regard, the Court of Appeals appears to have incorrectly read Young and Brown
to hold that “[u]se of a restrictive security device is only prejudicial when visible
to the jury,” Brashier v. State, 299 Ga. App. 107, 108 (681 SE2d 750) (2009)
(emphasis added), although the defendant in Brashier may not have alleged any
impairment of his ability to confer with counsel or attend to the trial, so the
result in that case may still be correct.
With these additional observations, I join the Court’s opinion.
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Decided July 13, 2015.
Certiorari to the Court of Appeals of Georgia – 327 Ga. App. 862.
G. Richard Stepp, for appellant.
Daniel J. Porter, District Attorney, Christopher M. Quinn, Thomas L.
Williams, Assistant District Attorneys, for appellee.
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