Kitchen v. State

• Decision Date: 02 December 1993
• Docket Number: No. S93A1732,S93A1732
• Citation: 263 Ga. 629,436 S.E.2d 645
• Parties: Christopher KITCHEN v. The STATE.
• Court: Georgia Supreme Court

Page 645

436 S.E.2d 645

263 Ga. 629

Christopher KITCHEN v. The STATE.

No. S93A1732.

Supreme Court of Georgia.

Dec. 2, 1993.

William R. Folsom, Valdosta, for Kitchen.

Bradfield M. Shealy, Asst. Dist. Atty., H. Lamar Cole, Dist. Atty., Valdosta, Michael J. Bowers, Atty. Gen., Susan V. Boleyn, Sr. Asst. Atty. Gen., Dept. of Law, Atlanta, for State.

Matthew P. Stone, Staff Atty., Dept. of Law, Atlanta.

CARLEY, Justice.

Appellant was indicted for felony murder in the commission of an aggravated assault, criminal attempt to violate the Georgia Controlled Substances Act by selling cocaine, and two counts of possession of a firearm during the commission of a crime. He was tried before a jury and found guilty of all counts. He appeals from the judgments of conviction and sentences entered by the trial court on the jury's guilty verdicts. ¹

1. The first enumeration of error urges that the trial court "erred by conducting the trial ... while appellant was restrained by leg chains."

Appellant objected to being tried while in restraints. However, "[a]t trial, the court has discretion in requiring a defendant to be handcuffed or shackled for security reasons. [Cit.]" Gates v. State, 244 Ga. 587, 593(2), 261 S.E.2d 349 (1979). The record shows that, in an in camera hearing held by the trial court prior to ordering that appellant be restrained, information was provided by the chief deputy regarding the possible need for security in the courtroom. Appellant's counsel was present at the hearing and, according to appellant's own brief, the information which prompted the trial court's decision to order the restraint was appellant's statement to the chief deputy that "he was going to cause trouble." Appellant does not contend that this statement attributed to him by the chief deputy was false. The record also shows that appellant did not request an additional hearing, "or attempt to refute the information on which the [trial] court acted. In these circumstances, [appellant] 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 S.E.2d 442 (1988). We cannot hold that a trial court, having been informed that a defendant charged with a violent crime has stated that "he was going to cause trouble," abused its discretion in ordering that the defendant be restrained as a preventative security measure.

Appellant makes the further argument that, even if his physical restraint was otherwise authorized, the trial court nevertheless erred in failing to charge the jury that his placement in such restraint should not be considered in determining his guilt. The record reflects that no request was made by appellant for such instructions. "Counsel cannot sit by and permit some matter they could correct by timely action and later claim error." Harris v. State, 237 Ga. 718, 726(6), 230 S.E.2d 1 (1976). "While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on ... the failure to give instructions to the jury ( [cit.] ) this does not relieve him from the necessity of requesting instructions, ... except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence." Spear v. State, 230 Ga. 74, 75(1), 195 S.E.2d 397 (1973). If requested to do so, a trial court should give a properly worded charge to the effect that a defendant's placement in physical restraint is to have no bearing on the determination of his guilt. Under the applicable procedure in this state, however, the failure to give such a charge without request is not reversible error, since, in the absence of such a charge, the jury is not otherwise left without proper guidelines for determining a defendant's guilt or innocence.

2. Appellant enumerates the general grounds.

Appellant admitted fatally shooting the victim while negotiating the sale of cocaine. Although appellant also testified that the victim had first attacked him with a knife and that he...