Williams v. State, 4078

• Citation: 629 P.2d 54
• Decision Date: 29 May 1981
• Docket Number: No. 4078,4078
• Parties: Dennis Scott WILLIAMS, Appellant, v. STATE of Alaska, Appellee.
• Court: Supreme Court of Alaska (US)

Page 54

629 P.2d 54

Dennis Scott WILLIAMS, Appellant, v. STATE of Alaska, Appellee.

No. 4078.

Supreme Court of Alaska.

May 29, 1981.

Richard B. Collins, Collins, Inc., P. C., Anchorage, for appellant.

W. H. Hawley, Asst. Atty. Gen., Anchorage, and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before RABINOWITZ, C. J., CONNOR, BURKE and MATTHEWS, JJ., and DIMOND, Senior Justice.

OPINION

DIMOND, Senior Justice.

Dennis Williams appeals his conviction for second degree murder. We reverse the conviction because Williams did not receive a fair trial, and we remand the case to the superior court for a new trial. We also express our views on matters alleged as error which may be pertinent to a retrial.

There were two events during Dennis Williams's trial which, in our opinion, require that his conviction for second degree murder be reversed. One was the trial court's refusal to order removal of handcuffs from a defense witness, Michael Williams (the defendant's brother). The other was the trial court's refusal to grant a mistrial following the prosecutor's statement in the presence of the jury that the hung jury at the previous trial had voted 11-1.

I.

The defendant called his brother, Michael Williams to testify as an alibi witness. During a recess, Michael arrived in court in handcuffs. The defendant requested, and the state agreed, that the handcuffs be removed. Three security guards were in the courtroom at this time. One guard, however, informed the court that regulations required another security guard to be present if the handcuffs were to be removed. The trial judge ruled that the handcuffs would remain on Michael during his testimony unless another security guard could be found. In order to allow time for arrangements for another guard, defense counsel decided to call another witness and delay Michael's testimony until after the noon recess. When Michael finally testified, his handcuffs remained.

The defendant argues that the presence of handcuffs on his alibi witness prejudiced his defense. We agree. In Anthony v. State, 521 P.2d 486 (Alaska 1974), this court expressed disapproval of the physical restraint of a defendant at trial: ¹

(M)anacles, shackles and other physical restraints are, of course, to be avoided. Deviation from these standards is justified only to protect the safety and decorum of the court, to prevent a threatened escape, or to respond to some other manifest necessity. Such measures should be taken only after the defendant has been given an opportunity for a hearing, and the restraints imposed should be the least intrusive which will accomplish the desired result.

Id. at 496 (footnotes omitted).

The Anthony court did not discuss the physical restraint of a defense witness. However, other courts which have restricted the use of physical restraint on defendants at trial have also applied their rulings to defense witnesses. See, e. g., People v. Duran, 16 Cal.3d 282, 127 Cal.Rptr. 618, 621 n.4, 545 P.2d 1322, 1325 n.4 (1976); State v. Coursolle, 255 Minn. 384, 97 N.W.2d 472, 476 (1959). ² The Sixth Circuit has explained the rule as follows:

The general rule for shackling witnesses is that a defendant has a right to have his witnesses appear free of shackles, except in special circumstances where there is evident danger of escape or harm to individuals in the courtroom. The decision whether to shackle witnesses is left to the sound discretion of the trial judge. The reason underlying the rule is the inherent prejudice to the defendant since it is likely the jury will suspect the witness's credibility. The prejudice factor toward the defendant, although much less than the situation where the defendant is shackled, provides a valid point of comparison even though the shackled witness cases do not directly affect the presumption of innocence.

Kennedy v. Cardwell, 487 F.2d 101, 105 n.5 (6th Cir. 1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974).

The American Bar Association has recommended a similar rule: "Defendants and witnesses should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he should enter into the record of the case the reasons therefor." ABA Standards Relating to Trial by Jury § 4.1(c), at 11, 93 (Approved Draft 1968), cited with approval in Anthony v. State, 521 P.2d 486, 496 n.34 (Alaska 1974).

In this case, the trial judge's complete deference to the security guards' regulation ³ amounted to delegation of the decision regarding handcuffs to a nonjudicial officer. Commentary to the ABA Standards emphasizes that the trial judge must make a finding of exceptional circumstances justifying restraint:

Although a number of trial judges have assumed that the officials responsible for custody of the incarcerated person are entitled to decide the need for physical restraint at trial, the appellate courts have continued to stress the fact that this important decision cannot be delegated to a nonjudicial officer.

ABA Standards Relating to Trial by Jury, at 95. According to the commentary, the standard requires:

If the trial judge allows physical restraints to be used, he must state for the record the basis for his decision in this regard, and the record must also support the trial judge's conclusions, either by way of the individual's conduct during trial or by way of evidence adduced out of the presence of the jury on the question of physical restraint.

Id. at 96. ⁴

There is no evidence in the record to establish any danger of violence or escape by Michael Williams, or any other manifest necessity for his restraint. Therefore, the trial judge's refusal to order removal of the handcuffs was unjustified, particularly in light of the fact that there were three security guards present in the courtroom.

The state argues that the defendant waived any objection with respect to the handcuffs by failing to reassert it when Michael was recalled after the noon recess. This argument is without merit.

Defense counsel objected to Michael's handcuffs and asked the trial judge to order their removal. The trial judge made it clear that the handcuffs would not be removed in the absence of a fourth security guard. ⁵ He also made it clear that his reason was the existence of the security regulation. ⁶ The purposes of the contemporaneous objection requirement were met because the defense request gave the court an opportunity to correct the handcuffs problem, and the court ruled and gave its reasons. See Alexander v. State, 611 P.2d 469 (Alaska 1980). Further defense objection was not required because it clearly would have been futile.

The state also argues that the defendant was not prejudiced because the testimony elicited from Michael made it clear that he was in jail because of a robbery conviction. This argument ignores the basic rationale for the rule against requiring a defense witness to appear in restraints. The prejudice to a defendant from requiring one of his witnesses to testify in handcuffs lies in the inherent psychological impact on the jury, not merely in the fact that the jury may suspect that the witness committed a crime. As the Sixth Circuit has noted, the jury is necessarily prejudiced against someone appearing in restraints " 'as being in the opinion of the judge a dangerous man, and one not to be trusted, even under the surveillance of officers.' " Kennedy v. Cardwell, 487 F.2d at 106, quoting State v. Kring, 64 Mo. 591, 593 (1877). Such prejudice greatly exceeds that resulting from knowledge that the witness has been convicted of a crime. ⁷

Michael Williams's credibility was especially significant because he was an alibi witness. Specifically, Michael testified that at the time of the killing the defendant was at home in the trailer in which they both lived. Furthermore, from a review of the entire record, it appears that the state's case was not strong. In the light of the latter, together with the importance of Michael Williams's testimony, we cannot say that the trial court's improper refusal to order removal of Michael Williams's handcuffs did not appreciably affect the jury's verdict. Therefore, the conviction should be reversed. See Love v. State, 457 P.2d 622, 632 (Alaska 1969).

II.

The other error which requires reversal of Dennis Williams's conviction stems from misconduct of the prosecutor. Prior to this incident of misconduct, the fact that the defendant had been previously tried was set before the jury several times by state witnesses or by the prosecutor in his formation of questions. The first reference to the fact that this previous trial had ended in a hung jury was made by defense counsel when he asked defense witness Donna Bailey whether she had been subpoenaed "(f)or ... the first trial that ended in a hung jury." No objection was made by the state.

The second reference to the hung jury came just after state's witness Jason Prior had testified to eating dinner with the prosecutor and his wife three or four times since the last trial. Following this testimony Prior said, "I didn't expect to testify again until I was called up." Defense counsel's next question was, "You didn't know that the first trial ended in a hung jury?" and Prior's answer was, "No, sir, not until I was told." At this point the prosecutor said, "May we have what the hung jury was then, that it was 11 to one. I mean my (indiscernible interrupted)."

The trial court immediately said, "I'm going to instruct the jury to disregard that comment." A subsequent motion for a mistrial was denied.

The defendant argues on appeal that this refusal to grant a mistrial was error. We agree. The statement was not supported by the record, ⁸ and it is unquestionably improper for the prosecutor to intentionally refer at trial to facts outside the record. ABA Standards Relating to the Prosecution Function and the Defense Function ...