Carter v. State, 60233

• Decision Date: 24 September 1980
• Docket Number: No. 60233,60233
• Citation: 155 Ga.App. 840,273 S.E.2d 417
• Parties: CARTER v. The STATE.
• Court: Georgia Court of Appeals

Page 417

273 S.E.2d 417

155 Ga.App. 840

CARTER v. The STATE.

No. 60233.

Court of Appeals of Georgia.

Submitted July 9, 1980.

Decided Sept. 24, 1980.

Jimmy J. Boatright, Alma, for appellant.

Dewey Hayes, Dist. Atty., for appellee.

CARLEY, Judge.

Appellant appeals his conviction of four counts of armed robbery, one count of motor vehicle theft and one count of misdemeanor pre-conviction escape under Code Ann. § 26-2501(b).

1. On the day of his trial appellant was wearing handcuffs when he was transported from the county jail to the courtroom. Appellant, while manacled, was taken into the courtroom in the presence of the prospective jurors. The assistant district attorney, noticing that appellant was handcuffed, immediately instructed the deputy sheriff to remove the restraints. Appellant was then taken out, his handcuffs removed, and returned to the courtroom. When appellant's case was called, his counsel moved to disqualify the entire jury panel and for the grant of a mistrial based upon appellant's appearance in handcuffs. Both motions were denied and appellant urges that denial of his motions was error.

Absent justifying circumstances, the defendant in a criminal case should not be seen by the jury handcuffed in the courtroom or courthouse. McKenzey v. State, 138 Ga.App. 88, 225 S.E.2d 512 (1976). However, the mere fact that a handcuffed defendant is seen by jurors or prospective jurors is not a ground for the automatic grant of a challenge to the array of jurors or of a mistrial. Gates v. State, 244 Ga. 587, 592(2), 261 S.E.2d 349 (1979); Phillips v. State, 238 Ga. 616(1), 234 S.E.2d 527 (1977); Howard v. State, 144 Ga.App. 208, 212(8), 240 S.E.2d 908 (1977).

In the instant case, at the time appellant was seen handcuffed he was in the process of being transported by the Sheriff's deputies, who are charged with the responsibility of taking the appropriate security measures to assure the confinement of a prisoner. See Howington v. Wilson, 213 Ga. 664, 100 S.E.2d 726 (1957). Appellant was charged with crimes of violence and with escape. We cannot say that under these circumstances it was not "natural" for appellant to be appropriately restrained during his journey from the place of confinement to the place of trial. Gates v. State, 244 Ga. 587, 261 S.E.2d 349, supra. Compare McKenzey v. State, 138 Ga.App. 88, 225 S.E.2d 512, supra. When it was discovered that after his entry into the courtroom appellant remained shackled, he was immediately freed. Starr v. State, 209 Ga. 258, 259(5a), 71 S.E.2d 654 (1952). On voir dire appellant's counsel specifically asked all prospective jurors who had observed appellant in handcuffs if they would be prejudiced against him for that reason. No prospective juror indicated that the observation of the appellant in handcuffs would be a source of prejudice against him. The trial judge himself then asked: "Let me stress to the jury that any of you that would have any question whether that would prejudice you against this defendant in any way whatsoever indicate by standing, please? If you feel that that would in any way prevent you from giving him a completely fair trial?" Cf. Starr v. State, 209 Ga. 258, 259(5b), 71 S.E.2d 654, supra. Again no juror indicated any prejudice against appellant because he had entered the courtroom in handcuffs. Under these circumstances, we find no error in the trial court's denial of the challenge to the array of the jury Phillips v. State, 238 Ga. 616, 234 S.E.2d 527, supra, or in the denial of the motion for mistrial. Howard v. State, 144 Ga.App. 208, 240 S.E.2d 908, supra.

2. Appellant made a pre-trial motion to sever the escape count from the other counts in the indictment. That count charged that appellant on October 25, 1979, "being in the lawful custody of Russell Tanner, Sheriff of Bacon County, Georgia, in the Bacon County Jail in Alma, Georgia, charged in a warrant for Armed Robbery and Motor Vehicle Theft, prior to conviction, did escape therefrom ..." Appellant was thus charged with misdemeanor escape pending trial for the other crimes charged in the same indictment. The alleged escape had occurred some thirty-five days after the other crimes charged in the indictment. Appellant's motion to sever the escape count was denied and this denial is enumerated as error.

"The right to severance of offenses exists only where the offenses have been 'joined solely on the ground that they are of the same or similar character.' (Cit.)" Phillips v. State, 238 Ga. 616, 618, 234 S.E.2d 527, supra. "However, where the joinder is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance 'lies within the sound discretion of the trial judge since the facts in each case are likely to be unique.' (Cits.)" Coats v. State, 234 Ga. 659, 662(4), 217 S.E.2d 260 (1975). It is clear that the charge of escape in the instant case is not "of the same or similar character" as the other charges in the indictment armed robbery and motor vehicle theft and that escape may, under certain circumstances, be one of a "series of acts connected together" and joined in a multi-count indictment. Coker v. State, 234 Ga. 555, 557(1), 216 S.E.2d 782 (1975), revd. on other grounds 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed. 892 (1977), on remand 239 Ga. 408, 238 S.E.2d 690 (1977). Thus, the sole question presented is whether the trial court abused its discretion in determining, after balancing the interests of appellant and those of the state, that "the interest of justice" would not be served by granting appellant's motion to sever. Jarrell v. State, 234 Ga. 410, 412(1), 216 S.E.2d 258 (1975).

Appellant concedes that the evidence of his escape from jail would have been admissible in a trial on the armed robbery and motor vehicle counts. Strozier v. State, 145 Ga.App. 566, 568(3), 244 S.E.2d 89 (1978). The sole argument advanced in support of the contention that it was an abuse of discretion to deny the motion to sever is...