297 Ga. 537
FINAL COPY


                   S14G1721. WELDON v. THE STATE.


      HINES, Presiding Justice.

      This Court granted a writ of certiorari to the Court of Appeals in Weldon

v. State, 327 Ga. App. 862 (761 SE2d 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

1
    See Weldon v. State, 328 Ga. App. 163 (761 SE2d 566) (2014).

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            advised as to the type of things that would cause that to
            be activated.

Id. at 865. 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 causing him to urinate

or defecate. Id. at 866.

      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


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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

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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

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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 SE2d 60) (1998) (overruled on other


       2
         After the jury was selected, through counsel, Weldon asked the court to reconsider its ruling
that he be required to wear the shock sleeve, stating that “it is excessively binding and in some ways
painful”; Weldon referred to “the distracting nature of the pain,” but raised no argument that the
asserted distraction affected his ability to consult with counsel or focus on the trial. The court
directed deputies to see if the device could be made more comfortable during the break prior to
opening statements, and observed that with the device on, Weldon appeared to focus more on the
proceedings than he had done without it.

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grounds, Whitehead v. State, 287 Ga. 242, 249 (2) (695 SE2d 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 SE2d 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 SE2d 852) (2010)

(Citations and punctuation omitted.) Failure to raise the issue deprives the trial

court of the opportunity to take appropriate remedial action and waives appellate

review of any alleged impropriety.3 White v. State, 281 Ga. 276, 280-281 (5)

       3
         We note that Weldon’s trial occurred in 2010, and thus, does not fall under the new
Evidence Code, effective January 1, 2013. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d
377) (2012), noting that plain error review is limited under the pre-2013 Code.

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(637 SE2d 645) (2006). Accordingly, the Court of Appeals did not err in

affirming the trial court on this ground.

      Judgment affirmed. All the Justices concur.




      NAHMIAS, Justice, concurring.

      I join the Court’s opinion in full. Before a trial court requires a criminal

defendant to wear an electronic shock device as a security measure in the

courtroom, the court must: (1) explain why such an extraordinary security

measure is needed to protect the safety and decorum of the proceeding and those

participating in it; (2) consider alternative ways to address that need; (3) ensure

that the defendant is aware of the operation of the device and, in particular, what

conduct by him may lead to a shock; and (4) provide an opportunity for the

defendant to address these matters and present any other concerns about use of

the shock device. See Nance v. State, 280 Ga. 125, 126-127 (623 SE2d 470)

(2005).
       Although more detailed discussion may have been preferable, the record

in this case shows that the trial court sufficiently addressed these matters and

articulated reasons supporting its ultimate exercise of discretion to require

Weldon to wear a concealed shock device during his trial.1 The record also

shows that before and during the trial, Weldon did not identify any alleged

shortcomings in the court’s findings or ask the court to consider any claim that

the device was impairing his ability to confer with counsel or to focus on the

proceeding, and he thereby forfeited his right to raise such objections on appeal.

This case is therefore distinguishable from the federal case on which Weldon

principally relies, United States v. Durham, 287 F3d 1297 (11th Cir. 2002),

where the defendant filed a pretrial motion to prohibit use of a shock belt,

asserting that the device would interfere with his rights to confer with counsel

and to participate in his own defense, and requested an evidentiary hearing to

address “a number of other questions relating to the operation and physical

effects of the stun belt,” including “information about the error rate of the

device, the criteria for triggering the belt, medical evidence that the shock would


       1
       To the extent that the Court of Appeals has read our cases as not requiring a trial court to
make any findings on the record regarding use of a shock device, see Lovelace v. State, 262 Ga. App.
690, 697 (586 SE2d 386) (2003), I believe that reading is erroneous.

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cause no long-term physical damage to the recipient, and information on the

training of the deputy with responsibility for activating the belt,” which the

Eleventh Circuit held that the trial court did not then sufficiently address on the

record. Id. at 1301-1302, 1307-1308.

      Having reviewed the case law and the parties’ arguments on this topic,

however, I believe three additional points are worthy of mention. First, although

one of this Court’s cases might be read to suggest that the trial court can simply

“defer[ ] to the sheriff in such security matters,” Brown v. State, 268 Ga. 354,

359 (490 SE2d 75) (1997), I think it is clear that the court must ultimately

determine for itself the need for extraordinary security measures and what

measures to employ. In other words, the court may properly take into account,

but may not defer entirely to, the views of the law enforcement personnel who

are responsible for securing the courtroom but are not responsible for securing

the defendant’s constitutional rights. The trial court in this case acted properly

in this regard.

      Second, in considering alternative measures, the court and the parties

should recognize that certain security measures may have different potential

effects on different rights of the defendant. Thus, for example, the use of a

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concealed shock device poses less risk that the jury will prejudicially perceive

the defendant as dangerous, when compared to the use of more visible security

measures like guards or shackles — but the shock device may pose a greater

risk to the defendant’s ability to consult with counsel and to focus on the

proceeding. Thus, whether a particular security measure should be deemed a

“less restrictive alternative” than another measure depends on what rights the

defendant asserts as well as the particular circumstances of the case.

      Finally, and relatedly, the test this Court once applied to a claim regarding

use of shock device — whether it was ““‘so inherently prejudicial as to pose

an unacceptable threat to [the defendant’s] right to a fair trial,”’” Young v. State,

269 Ga. 478, 479 (499 SE2d 60) (1998) (citation omitted), overruled on other

grounds by Whitehead v. State, 287 Ga. 242, 249 (695 SE2d 255) (2010) — is

properly applied only to determine whether conspicuous security measures, like

an allegedly excessive number of guards, affected the defendant’s Sixth

Amendment right to a fair trial, as in the case from which Young quoted,

Chancey v. State, 256 Ga. 415, 434-435 (349 SE2d 717) (1986). Use of a

properly concealed shock device will never meet that test — but the analysis

should not end there if the defendant claims that the shock device also violated

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his Sixth Amendment right to counsel or his due-process-based right to be

present at trial. See Brown, 268 Ga. at 359-360 (stating that “accepting the

analogy to shackling, [a shock device] is prejudicial to a defendant only when

visible to the jury,” citing cases akin to Chancey, but then going on to address

and reject the defendant’s “contention that the device nonetheless had a

detrimental psychological effect on his ability to participate in the trial”). In this

regard, the Court of Appeals appears to have incorrectly read Young and Brown

to hold that “[u]se of a restrictive security device is only prejudicial when visible

to the jury,” Brashier v. State, 299 Ga. App. 107, 108 (681 SE2d 750) (2009)

(emphasis added), although the defendant in Brashier may not have alleged any

impairment of his ability to confer with counsel or attend to the trial, so the

result in that case may still be correct.

      With these additional observations, I join the Court’s opinion.




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                           Decided July 13, 2015.

      Certiorari to the Court of Appeals of Georgia – 327 Ga. App. 862.

      G. Richard Stepp, for appellant.

      Daniel J. Porter, District Attorney, Christopher M. Quinn, Thomas L.

Williams, Assistant District Attorneys, for appellee.




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