Criminal Practice – Robbery & Assault – Shackles – No Prejudice – Indictment – Speedy Trial – Jury & Jurors – Unanimity

State v. Lee (Lawyers Weekly No. 12-07-0063, 32 pp.) (Douglas McCullough, J.) Appealed from Halifax County Superior Court. (Cy A. Grant, J.) N.C. App. Click here for the full-text opinion.

Holding: The trial court did not follow the law when it required defendant to remain in shackles during trial because he was financially unable to make bond. However, the error was harmless under the particular circumstances of this case:

The trial court clearly and emphatically instructed the jury not to consider defendant’s restraints in any manner, and despite having to present his own defense while wearing the shackles, defendant was still able to obtain an acquittal on one of the attempted murder charges against him. Furthermore, given the overwhelming evidence against defendant, including his own Mirandized statements, we fail to see how defendant’s shackling contributed to his convictions.

Nevertheless, we again strongly caution trial courts to adhere to the proper procedures regarding shackling of a defendant.

We find no prejudicial error in defendant’s convictions of attempted first-degree murder, attempted robbery with a dangerous weapon, and assault with a deadly weapon with intent to kill inflicting serious injury.

Speedy Trial

Despite the passage of 22 months between defendant’s arrest and his trial, defendant’s right to a speedy trial was not violated. Part of the delay arose from defendant’s dissatisfaction with his appointed counsel. However, nearly 10 months passed between the completion of defendant’s court-ordered psychiatric evaluation and his competency hearing.

We are unable to determine from the record the precise reason for this 10-month delay. The record indicates that during this time, defendant filed numerous complaints with the State Bar concerning his appointed counsel and wrote the trial court on multiple occasions asking that his appointed counsel be removed from his case. The record further indicates that also during this time, the victim was out of the country receiving medical treatment for his injuries and was unavailable.

While we are troubled by such a delay, given the actions by defendant concerning his appointed counsel and the availability of the victim, we cannot say the delay was due to any willfulness or negligence on the part of the state, especially in light of the fact that defendant has made no showing of such on appeal.

Defendant has failed to show any actual and substantial prejudice resulting from the delay.

Defendant does contend that, because of the delay, the assault victim was no longer available for trial. However, defendant does not state what possible evidence he could have obtained from the victim that would have been beneficial or significant to his defense.

Furthermore, the fact that defendant had no opportunity to cross-examine the victim is inapposite, as the state neither presented the victim as a witness nor used the victim’s testimony during trial. Thus, defendant has not met his burden of showing any actual or substantial prejudice resulting from the delay.

Although the length of time between defendant’s arrest on these charges and his trial appears to be unusual, in light of the fact that defendant has made no showing that such a delay was due to the willful or negligent actions of the state and in light of the fact that defendant has shown no prejudice by the delay, we hold the trial court did not err in denying defendant’s motions to dismiss for speedy trial violations.

Other Issues

Even though the evidence showed that defendant used an AK-47 to commit the offense, while the indictment alleged that defendant used a handgun, both are guns and carry the same legal significance. Defendant does not even argue that any prejudice resulted from the difference in the gun alleged in the indictment and the gun established at trial. The trial court correctly denied defendant’s motion to dismiss the assault charge based on a supposed fatal variance between the indictment and the evidence produced at trial.

The trial court did not coerce the jury to return unanimous verdicts. The jury began its deliberations at 3:38 p.m. on the third day of trial and had reached unanimous verdicts as to two charges by 5:51 p.m. Although the trial court told the jury they would stay longer for further deliberations, the trial court did not instruct the jury that they would be required to stay until a unanimous verdict was reached on all charges. The trial court simply instructed the jury they would stay longer that evening “with a view towards reaching a unanimous verdict.”

After the instruction was given, no juror indicated that staying longer would be a problem, and the jury returned unanimous verdicts in all four cases after 11 more minutes of deliberations. The trial court’s instructions were not prejudicial error entitling defendant to a new trial.

Although defendant points to the fact that he shot the victim below the waist, the state presented sufficient evidence of an intent to kill: defendant’s own statements indicated that he planned to shoot and kill the victim because the victim had “disrespected” him and “shorted” him on a drug deal, and that defendant entered the victim’s store and opened fire on the victim with a high-powered assault rifle.

No prejudicial error.