McKenzey v. State, 51804

• Decision Date: 11 March 1976
• Docket Number: No. 51804,No. 3,51804,3
• Citation: 138 Ga.App. 88,225 S.E.2d 512
• Parties: Howard McKENZEY v. The STATE
• Court: Georgia Court of Appeals

Page 512

225 S.E.2d 512

138 Ga.App. 88

Howard McKENZEY v. The STATE.

No. 51804.

Court of Appeals of Georgia, Division No. 3.

March 11, 1976.

James T. Irvin, Toccoa, for appellant.

V. D. Stockton, Dist. Atty., Clayton, for appellee.

WEBB, Judge.

Howard McKenzey and Jessie Daniels were indicted for an escape from Georgia Industrial Institute alleged to have occurred on April 21, 1975. McKenzey was tried on August 20, 1975. The jury returned a guilty verdict with the recommendation that McKenzey be punished as for a misdemeanor and the court sentenced him to three years to be served consecutively to any sentence he was then serving.

Upon the overruling of his motion for new trial McKenzey filed notice of appeal in the Superior Court of Habersham County on November 17, 1975. The transcript of record was docketed in this court on December 1, and on December 19 the enumeration of errors and brief of appellant were filed.

We note for publication but without further comment that no brief was filed by the District Attorney of the Mountain Judicial Circuit within 40 days of the docketing of the appeal as required by Rule 16(a) of this Court, and that the District Attorney made no appearance before this court for oral argument on February 4, 1976. It was not until February 24, 46 days after the time for filing of the appellee's brief had expired, that a two-page brief, in which no cases were cited as authority, was filed in response to McKenzey's ten enumerated errors.

1. McKenzey assigns error on the court's denial of his challenge to the array of jurors on the grounds that he had been brought into the courtroom in their presence in prison uniform and handcuffed. The District Attorney contends that the challenge is without merit because the motion was not shown to be in writing as required by Code Ann. § 59-803.

Although the challenge was made orally, the record reveals that a written motion was filed prior to the hearing on McKenzey's motion for new trial, which presented the denial of the challenge as a ground. '(W)here a person accused of a crime is not afforded the opportunity to make appropriate objections to the illegal composition of the grand jury or the travers jury before indictment or during the progress of the trial, he may raise the issue by motion for new trial or by habeas corpus proceedings.' Cobb v. State, 218 Ga. 10, 22(4), 126 S.E.2d 231, 239.

It appears from the trial transcript that his attorney was unaware that McKenzey would be dressed in prison uniform and brought into the courtroom in handcuffs until he actually appeared, at which time the oral objection and motion for mistrial was made and overruled. Therefore we will consider the challenge on its merits.

(a) Insofar as McKenzey's appearance in prison clothing is concerned, 'even if the denial of the motion was error no harm has been shown as the crime of escape necessarily involves a defendant who has been confined in a lawful place of confinement.' Krist v. State, 133 Ga.App. 197, 210 S.E.2d 381; Spurlin v. State, 228 Ga. 763, 765(4), 187 S.E.2d 856.

(b) We conclude, however, that the trial court erred in denying McKenzey's motion in regard to his appearance before some of the jurors while handcuffed. '(A) defendant being tried for a criminal offense on a plea of not guilty was entitled, at common law, to make his appearance free from all shackles or bonds. This is also the present rule, and the right is recognized as an important, component of a fair and impartial trial.' 21 Am.Jur.2d 276, Criminal Law, § 240. ¹ Every person charged with an offense against the laws of this State shall have a public and speedy trial by an impartial jury. Bill of Rights, Sec. I, Par. V (Constitution of Georgia, Code Ann. § 2-105).

Accordingly, "(A) defendant has a right to be tried in an atmosphere free of partiality created by the use of excessive guards except where special circumstances (exist), which in the discretion of the trial judge, dictate added security precautions.' (Cit.)' Allen v. State, 235 Ga. 709, 711, 221 S.E.2d 405, 409. We find no circumstances which would dictate the use of handcuffs in this case.

Although McKenzey was on trial for escape, the evidence established that his cell door was left unlocked at night and that he had on many occasions during his imprisonment been left unsupervised while he worked all day as a brick mason with numerous opportunities to escape. He denied under oath any attempt to escape, testifying that he and Daniels meant only to go to a bootlegger's house, which Daniels thought was near the pumping station where they were working to get some whiskey and to return before they were missed.

Thus there was no 'history of escape' to justify the use of restraint as shown in United States v. Bankston, 424 F.2d 714 (5th Cir. 1970). Nor were there threats on the lives of the state's witnesses and on the trial judge as in Allen v. State, 235 Ga. 709, 711, 221 S.E.2d 405, supra. Furthermore, there was a clear showing through McKenzey's undisputed testimony that he was seen by some of the panel of prospective jurors as he was led in handcuffs into the courtroom, and no attempt was made by the trial judge to explain to the jury that seeing McKenzey handcuffed was to have no bearing on its consideration of the merits of the charge...