Weldon v. State

• Decision Date: 13 July 2015
• Docket Number: No. S14G1721.,S14G1721.
• Citation: 775 S.E.2d 522,297 Ga. 537
• Parties: WELDON v. The STATE.
• Court: Georgia Supreme Court

297 Ga. 537

775 S.E.2d 522

WELDON

v.The STATE.

No. S14G1721.

Supreme Court of Georgia.

July 13, 2015.

G. Richard Stepp, Lawrenceville, for appellant.

Daniel J. Porter, Dist. Atty., Christopher Michael Quinn, Thomas L. Williams, Asst. Dist. Attys., McDonough, for appellee.

Opinion

HINES, Presiding Justice.

This Court granted a writ of certiorari to the Court of Appeals in Weldon v. State, 327 Ga.App. 862, 761 S.E.2d 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 advised as to the type of things that would cause that to be activated.

Id. at 865, 761 S.E.2d 421. 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 causinghim to urinate or defecate. Id. at 866, 761 S.E.2d 421.

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 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 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 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 S.E.2d 60 (1998) (overruled on other grounds, Whitehead v. State, 287 Ga. 242, 249(2), 695 S.E.2d 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 S.E.2d 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 S.E.2d 852 (2010) (Citations and punctuation omitted.)...