           IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE           FILED
                                                    December 23, 1997

STATE OF TENNESSEE,               )                Cecil Crowson, Jr.
                                       C.C.A. NO. 03C01-9703-CR-00089
                                                     Appellate C ourt Clerk
                                  )
      Appellee                    )    LOUDON COUNTY
                                  )
v.                                )    HON. E. EUGENE EBLEN,
                                  )    JUDGE
NATHANIEL DAVID BIRCHFIELD,       )
                                  )    Robbery
      Appellant                   )




FOR THE APPELLANT                      FOR THE APPELLEE

Mary Katherine Longworth               John Knox Walkup
Suite One, 410 Wharf Street            Attorney General & Reporter
P.O. Box 501
Loudon, TN 37774                       Peter M. Coughlan
                                       425 Fifth Avenue North
                                       2d Floor, Cordell Hull Building
                                       Nashville, TN 37243-0493




OPINION FILED


REVERSED AND REMANDED

JOHN K. BYERS
SENIOR JUDGE
                                      OPINION

       The defendant was convicted of robbery and sentenced to serve eight years

and to pay a fine of $4,000.001.

       The defendant raises the following issues:

       (1) the trial court erred in failing to grant defendant’s pretrial motion to vacate
       and remand or dismiss for failure of the state to record the preliminary
       examination;
       (2) the trial court committed reversible error in forcing defendant to go to trial
       in leg chains where the state did not show any necessity for chaining
       defendant during the trial and the jury was not instructed to disregard chains
       in determining guilt; and
       (3) the trial court erred in failing to dismiss counts one and two of the
       indictment which charged a violation of the definitional statute pertaining to
       burglary, Tenn. Code Ann. Section 39-14-401.

       We reverse this case and remand for a new trial.

       On August 11, 1994, the defendant, along with four others who are

unidentified, arrived at J. B.’s Country Store at 8:15 to 8:30 p.m. in a pick-up truck.

The defendant pumped gas into the truck and he and another person he arrived with

entered the store.

       The defendant selected two six packs of beer, went to the counter, and gave

the clerk a credit card to pay for the gas and beer. The credit card company refused

to honor the credit card given by the defendant. The defendant then gave the clerk

another credit card which was also refused.

       Another employee came to the counter to help deal with this problem. After

some discussion between the defendant and the employee, the clerk told the

defendant if he did not pay for the purchases the police would be called. The

defendant answered if they were going to call the police he would take the beer and

go. The defendant then picked up the beer and left the store and got into the truck.

       Sarah Sweetwood, the clerk who first dealt with the defendant, followed the

defendant to the truck. Ms. Sweetwood testified she went out to obtain the license



       1
        The jury also found the defendant guilty of an assault arising out of this
case, but the trial court dismissed the conviction.

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number on the truck. When asked if she wanted to get the beer from the defendant

she said she did.

       Ms. Sweetwood testified the defendant was in the truck when she got outside

and that the defendant got out of the truck and grabbed her by the throat and told

her to get back in the store “or else.” Ms. Sweetwood entered the store and had no

more contact with the defendant. Ms. Sweetwood’s neck was severely bruised in

this encounter.

       A person, who is unidentified in the record, assaulted the defendant after he

had assaulted Ms. Sweetwood. The beer was returned to the store by an

unidentified person. The defendant came back into the store and again took the

beer and went into the parking lot.

       The police had arrived at the store by the time the defendant took the beer

out the second time and he was arrested.

       We will respond to the second issue raised on this appeal first because we

believe it to be the only issue which requires a reversal of the conviction.

       When the defendant was brought into the courtroom, he was in leg irons.

The defendant moved to have the leg irons removed, whereupon the following

transpired:

       The State: As Your Honor is aware, and the record reflects, this defendant
       left the jurisdiction; did not return as he has been ordered and directed to by
       the Court. Also, I believe we should acknowledge that the defendant is
       currently facing a homicide charge in the State of North Carolina. He is
       currently in federal custody -- we have temporary custody of him -- on some
       prior sentences. And we feel like those matters show that he is a risk. And
       that’s justification, if Your Honor feels so, to leave him in the leg irons.

       The Court: Well under the circumstances, with him failing to appear before,
       and being under the indictments that he is under, and with his other situation,
       the Court feels that he has his hands unshackled, and that would not be
       prejudicial under these circumstances, and probably would be necessary that
       his feet stay shackled for this trial.

       The rule on the use of restraints of an accused during trial is set out very well

in the brief of the defendant as follows:

               The rule regarding the use of restraint of an accused during the trial is
       set forth in Willocks v. State, 546 S.W.2d 819, 820 (Tenn. Crim. App. 1976):
       “We begin our examination of controlling law by observing that the concept of
       due process imbedded in our state and federal constitutions guarantees
       every criminal defendant a fair and impartial trial. Included in the
       presumption of innocence, which is mandated by due process and which

                                              -3-
       attaches in each criminal case, is the defendant’s right to the ‘physical indicia
       of innocence.’” Kennedy v. Cardwell, 487 F.2d 101, 104 (6th Cir. 1973), cert.
       denied sub nom Kennedy v. Gray, 416 U.S. 959 (1974), citing United States
       v. Samuel, 431 F.2d 610, 614 (4th Cir. 1970), cert. denied 401 U.S. 946
       (1971).” The court added, “The rule that a prisoner brought into court for trial
       is entitled to appear free from all bonds or shackles is an important
       component of a fair and impartial trial. And shackles should never be
       permitted except to prevent the escape of the accused, to protect everyone in
       the courtroom, and to maintain order during the trial.” Willocks, 546 S.W.2d
       at 820 (citing Woodards v. Cardwell, 430 F.2d 978, 982 (1970), cert. denied
       401 U.S. 911 (1971). The court continued, “The United States Supreme
       Court has described such physical restraint as ‘something of an affront to the
       very dignity and decorum of the judicial proceedings that the judge is seeking
       to uphold’ and has approved the use of shackling and gagging only as a ‘last
       resort.” Willocks, 546 S.W.2d at 820 (citing Illinois v. Allen, 397 U.S. 337,
       344 (1970).
               A review of Tennessee law reflects it is in the discretion of the trial
       court to decide whether to shackle a defendant during trial. Matthews v.
       State, 77 Tenn. 128 (1882); Poe v. State, 78 Tenn. 673 (1882). Currently a
       defendant may be shackled during a trial only to prevent his escape.
       Willocks, 546 S.W.2d 820 (court’s cites omitted). Further, the burden falls
       upon the state to make a clear showing of the necessity for such restraint and
       requires an adequate jury instruction that the restraint should in no way affect
       the determination of guilt or innocence. State v. Thompson, 832 S.W.2d 577,
       580 (Tenn. Crim. App. 1991)(emphasis added). Absent these safeguards,
       “in-court shackling is inherently prejudicial to the defendant. . . .” Willocks,
       546 S.W.2d at 822.

       The trial court conducted no hearing on this matter to determine if there was

serious likelihood that the defendant would attempt to escape or whether some

method, less prejudicial than restraints, of securing the prisoner could have been

used. Further, the trial court did not instruct the jury that the restraints should be

ignored by them in determining the guilt or innocence of the defendant.

       The state argues that there is no evidence that the jury saw the leg irons on

the defendant. There is nothing in this record to show that any effort to conceal the

shackles was taken. The burden is on the state to furnish an accused a fair trial

with proper regard for the preservation of constitutional rights of persons accused of

crime. It is the burden of the state to show there was no constitutional deprivation

occasioned by the actions of the state. If we accept the state’s theory on this issue,

we must assume the jury did not see what was there to be seen.

       In general, we assume people see or should see what is there to be seen. If

we adopt the state’s view, a defendant who is shackled in the presence of a jury is

caught in the proverbial catch 22 -- the defendant must say nothing and lose an

appeal because the record does not show the jury saw the shackles, or the



                                           -4-
defendant must bring the shackles to the attention of the jury and then be

confronted with a claim the defendant created the error and cannot complain about

the effect it had on the jury.

       We are unwilling to assume away a constitutional right of an accused in the

circumstances here shown.

       The state also suggests that a harmless error analysis is appropriate in

constitutional violations in the course of a trial. State v. Thompson, 832 S.W.2d 577

(Tenn. Crim. App. 1991). In making a harmless error assessment, the strength of

the doctrine depends upon the facts of the case. If evidence of guilt is strong or

overwhelming, the use of the doctrine is generally acceptable. If the proof of guilt is

weak, the use of the doctrine is less justifiable. In applying the doctrine to

constitutional issues, the rule is that it must be clear that the constitutional error was

harmless beyond a reasonable doubt.

       To reconcile the rule with the facts in this case, we point out the testimony of

the witnesses is weak on whether robbery was committed in this case.

       Ms. Sweetwood testified she went into the parking lot to get the license

number from the truck after the defendant left with the beer. The state then asked

this leading question, which was not objected to, “Did you want to try to keep him

from getting the beer?” She answered, “Yeah, I was going to get the beer from

him.” A later witness testified Ms. Sweetwood went out to get the license number

from the truck. There is in fact a serious jury issue in this case on whether the beer

was taken by violence or by putting in fear. Under these circumstances, we are

unwilling to apply the harmless error rule to this constitutional error.

       The matter of the failure to make available to the defendant a recording of the

preliminary hearing as required by Rule 5.1(a) of the Tennessee Rules of Criminal

Procedure is a significant issue. The rule should be carefully followed by those

officials whose duty it is to ensure a preservation of the due process rights of an

accused. However, there is no allegation or showing that the defendant was

prejudiced by this failure and we find an error, if any, in this matter is clearly

harmless.



                                            -5-
       The indictment in this case charging the defendant with robbery erroneously

set out citation to Tenn. Code. Ann. § 39-14-401, which refers to burglary rather

than robbery. The body of the indictment charges the words necessary to inform

the defendant he was accused of robbery. The insertion of the code section

appears to be a clerical error. Where the indictment clearly informs the accused of

the offense of which he is charged, where it is clear from the indictment that the

court has jurisdiction of the case, and where an accused would be protected from a

further prosecution on the same facts by reason of the double jeopardy clause of

the Constitution, the inadvertent addition of the incorrect statute in the charging

instrument does not make the charging instrument void. The erroneous addition in

such cases is merely surplusage, and a trial and conviction may be had on such an

instrument. State v. Culp, 891 S.W.2d 232 (Tenn. Crim. App. 1994).




                                          John K. Byers, Senior Judge

CONCUR:




Gary R. Wade, Judge




Curwood Witt, Judge




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