Garner v. State

• Decision Date: 15 September 2017
• Docket Number: A17A1170.
• Citation: 805 S.E.2d 464
• Parties: GARNER v. The STATE.
• Court: Georgia Court of Appeals

342 Ga.App. 824

805 S.E.2d 464

GARNER

v.The STATE.

A17A1170.

Court of Appeals of Georgia.

September 15, 2017

Matthew Gerard Leipold, for Appellant.

Jennifer C. Bagwell, Lee Darragh, Gainesville, for Appellee.

McMillian, Judge.

Ronta Garner appeals the denial of his motion for new trial, as amended, after a jury convicted him of aggravated assault and possession of a firearm during the commission of a crime. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict,¹ the evidence at trial showed that on the evening of October 30, 2013, Garner and Shamarcus Grimes were at an apartment complex in Hall County when they encountered Quavis Carruth, Trevor Martin, and Darius Wilkins. Both Garner and Grimes drew their guns, with Garner pointing his gun at Martin and Grimes pointing his gun at Carruth. Carruth said that during this encounter, he crossed his arms and looked Grimes in the eye to hide the fact that he was afraid. Garner and Grimes let the men leave after Garner, who appeared angry, spoke with Martin. Later, Garner and Grimes began following the other men through the apartment complex. At one point, Garner called Carruth over and asked him about the way he had been looking at Grimes. During this second conversation, Grimes told Garner, "If you don't shoot [Carruth], I'll shoot you." Garner then shot Carruth.

Based on this incident, Garner and Grimes were indicted jointly on a charge of aggravated assault, and Garner was indicted individually on one count of possession of a firearm during the commission of a crime. Garner later filed a motion to sever his trial from Grimes's, and the trial court granted the motion. The jury convicted Garner on both counts.²

1. Garner argues that the trial court denied his Sixth and Fourteenth Amendment rights by requiring him to wear a shock belt during the course of trial. Although the shock belt was attached to Garner's ankle underneath his pants and not visible to the jury, he asserts that the stress of wearing the belt inhibited his ability to assist in his own defense.

Before the jury entered the courtroom, Garner's counsel objected to the use of the shock belt, noting that he had first learned of this security measure on the morning of trial and that he had been given no reason for its use. The attorney said he thought the device made his client "extremely nervous" and argued that it interfered with the administration of a fair jury trial. Although the trial judge stated that he did not usually interfere with the sheriff's chosen security measures, the judge nevertheless questioned the officer assigned to oversee security in his courtroom about the use of the device and its effect on Garner, and he allowed Garner's counsel to do the same. Based on this exchange, the trial judge overruled Garner's objection, stating that he did not find any evidence that the device would prevent Garner from being able to fully and actively participate in the trial.

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.

Young v. State , 269 Ga. 478, 479 (2), 499 S.E.2d 60 (1998), overruled on other grounds by Whitehead v. State , 287 Ga. 242, 695 S.E.2d 255 (2010). See also Weldon v. State , 297 Ga. 537, 540-41, 775 S.E.2d 522 (2015) ; Nance v. State , 280 Ga. 125, 127 (3), 623 S.E.2d 470 (2005) ; Campbell v. State , 333 Ga. App. 829, 831 (2), 777 S.E.2d 507 (2015). Moreover,

[w]hile the use of a properly concealed shock device will never be so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial, the analysis should not end there if the defendant claims that the shock device also violated his Sixth Amendment right to counsel or his due-process-based right to be present at trial.

(Citation and punctuation omitted.) Campbell , 333 Ga. App. at 832 (2), 777 S.E.2d 507. In that situation, the defendant must show that the use of the shock device prejudiced his due process rights or interfered with his right to counsel. Weldon , 297 Ga. at 541, 775 S.E.2d 522 ; Campbell , 333 Ga. App. at 833 (2), 777 S.E.2d 507.

Pretermitting whether the trial court erred in failing to articulate the reasons supporting the use of the shock belt, neither Garner nor his counsel raised any complaints during the course of the trial that the shock belt was interfering with Garner's ability to assist in his own defense, other than counsel's initial objection that he thought the shock belt made Garner nervous. "Failure to raise the issue [at trial] deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety." (Citations and punctuation omitted.) Weldon , 297 Ga. at 541, 775 S.E.2d 522. We also note that Garner did not testify at the hearing on his motion for new trial, and there was no other evidence presented at that hearing as to how the shock belt affected him.³ Accordingly, because the record is devoid of any evidence of harm or prejudice to Garner from the use of the shock belt, he cannot establish that he was deprived of a fair trial on this ground. Id. In addition, based on the facts and circumstances of this case, including evidence that Garner had threatened the victim and his children,⁴ we find no abuse of discretion in the trial court's overruling of Garner's objection to the use of the shock device.

2. Garner similarly asserts that the trial court violated his Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process by allowing an extra metal detector to be placed outside the entrance to Garner's courtroom in view of the jury. As with the shock belt, the use of this security measure was within the trial court's discretion. Young , 269 Ga. at 479 (2), 499 S.E.2d 60. However, Garner asserts that the trial court failed to exercise discretion, and instead, he argues, the court merely deferred to the sheriff's office, which in turn deferred to the prosecution, in placing the extra metal detector outside of the courtroom.

On the first day of trial, before the jury panel entered the courtroom, Garner's attorney raised the issue of the additional metal detector placed outside the courtroom for Garner's trial and noted none of the other three courtrooms had such security. He objected to the presence of these devices in sight of the jury. The trial judge overruled the objection but offered to instruct the jurors prior to the jury selection process that his courtroom was the only one in operation that week, which would have suggested a neutral explanation for the absence of metal detectors outside the other courtrooms. Garner's attorney declined the offer.

Subsequently, the jury panel was escorted around the metal detector when they entered the courtroom for the first time. Once the jury was selected, however, they entered and left the courtroom through a separate, private entrance out of sight of the metal detector, and the doors to the courtroom were closed during trial, blocking the jurors' view of the device, unless someone entered or exited the courtroom.

As with the use of the shock belt, Garner has failed to demonstrate that the use of the extra metal detector resulted in any prejudice. Although Garner contends that the use of a visible metal detector outside the courtroom was inherently prejudicial to him, and thus he does not need to show actual harm, we disagree. The United States Supreme Court has held that additional security measures, other than visible personal restraints, are not inherently prejudicial due to "the wider range of inferences that a juror might reasonably draw" from their use. Holbrook v. Flynn , 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). That case involved the presence of additional police officers in the courtroom, and the Court explained,

While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards.

Holbrook , 475 U.S....