               IN THE COURT OF APPEALS OF NORTH CAROLINA

                                  No. COA15-534

                              Filed: 16 February 2016

Mecklenburg County, No. 13 CRS 224326

STATE OF NORTH CAROLINA

              v.

XAVIER DONNELL SELLERS, Defendant.


       Appeal by Defendant from judgment entered 10 April 2015 by Judge Nathaniel

J. Poovey in Mecklenburg County Superior Court. Heard in the Court of Appeals 4

November 2015.


       Attorney General Roy Cooper, by Assistant Attorney General Lareena J.
       Phillips, for the State.

       Jarvis John Edgerton, IV, for Defendant-Appellant.


       HUNTER, JR., Robert N., Judge.


       Xavier Donnell Sellers (“Defendant”) appeals following a jury verdict

convicting him of assault with a deadly weapon inflicting serious injury. Following

the verdict, the trial court sentenced Defendant to 55 to 78 months imprisonment.

On appeal, Defendant argues the trial court erred by failing to comply with the

provisions of N.C. Gen. Stat. § 15A-1031. Because Defendant waived this issue at

trial, we find no error.

                      I. Factual and Procedural Background
                                        STATE V. SELLERS

                                        Opinion of the Court



       On 23 September 2013, a Mecklenburg County grand jury indicted Defendant

for assault with a deadly weapon inflicting serious injury, communicating threats,

and assault on a female. The State gave Defendant notice that it sought to prove

aggravating factors. Defendant pled not guilty, and the case was called for trial 7

April 2014.

       The State presented evidence on 8 April 2014, and called Shalamar Venable as

its first witness. Thereafter, the State put on additional witnesses and evidence. At

the close of the State’s case, the trial court dismissed the charges for assault on a

female and communicating threats. Thereafter, Defendant informed the court that

he would testify. The transcript1 reveals the following:

               BAILIFF: Your Honor, do you want him to be in front of
               the jury—they’re going to know he’s got leg restraints on.

               THE COURT: What do you want to do about that?

               BAILIFF: He’s done it three times.

               THE COURT: [Defense counsel], what do you say?

               [DEFENSE COUNSEL]: I don’t object to him walking up
               there.

               THE COURT: Even with leg restraints on?

               [DEFENSE COUNSEL]: No, sir.

               THE COURT: You might ask him—it might be part of your
               defense. Let’s just let him walk up in front of the jury. . . .

       1  The parties agree the record is silent on whether Defendant was shackled prior to this
exchange. However, the bailiff clearly indicated Defendant was in leg shackles prior to this exchange,
and the jury saw Defendant’s shackles on three prior occasions.

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                                   STATE V. SELLERS

                                   Opinion of the Court



             [The jury returns to the courtroom]

             THE COURT: Will there be evidence for the defendant?

             [DEFENSE COUNSEL]: Yes, sir. We call [Defendant].

             THE COURT: Sir, come on up. Step around to the witness
             box, please. Once there, place your left hand on the Bible,
             raise your right, and face the jury.

Defendant walked in front of the jury with leg shackles on, and testified he acted in

self-defense. Defendant did not object at any time. Neither party requested a jury

instruction regarding the leg shackles, and neither party moved for mistrial.

      On 10 April 2014, the jury returned a unanimous verdict finding Defendant

guilty of assault with a deadly weapon inflicting serious injury. The court sentenced

Defendant in the aggravated range to 55 to 78 months imprisonment. Defendant

timely gave his oral notice of appeal.

                                     II. Analysis

      “The law has long forbidden routine use of visible shackles during the guilt

phase [of trial]; it permits a State to shackle a criminal defendant only in the presence

of a special need.” Deck v. Missouri, 544 U.S. 622, 626 (2005). “[T]he Fifth and

Fourteenth Amendments prohibit the use of physical restraints visible to the jury

absent a trial court determination, in the exercise of its discretion, that they are

justified by a state interest specific to a particular trial.” Id. at 629. “Thus, where a

court, without adequate justification, orders the defendant to wear shackles that will

be seen by the jury, the defendant need not demonstrate actual prejudice to make out

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                                        STATE V. SELLERS

                                        Opinion of the Court



a due process violation.” Id. at 635. “The State must prove ‘beyond a reasonable

doubt that the [shackling] error complained of did not contribute to the verdict

obtained.’” Id. (citing Chapman v. California, 386 U.S. 18, 24 (1967)).

       Defendant contends the trial court violated N.C. Gen. Stat. § 15A-1031 by

allowing him to appear before the jury in leg shackles, and failing to issue a limiting

instruction.    Our Supreme Court, and this Court, held that failure to object to

shackling waives “any error which may have been committed.” State v. Tolley, 290

N.C. 349, 371, 226 S.E.2d 353, 370 (1976); see also State v. Thomas, 134 N.C. App.

560, 568, 518 S.E.2d 222, 228 (1999); State v. Ash, 169 N.C. App. 715, 726, 611 S.E.2d

855, 863 (2005).2 Even though these opinions were published prior to the United

States Supreme Court decision in Deck v. Missouri, we must hold Defendant waived

his shackling challenge.

       “It is not the duty of this Court to supplement an appellant’s brief with legal

authority or arguments not contained therein.” Goodson v. P.H. Glatfelter Co., 171

N.C. App. 596, 606, 615 S.E.2d 350, 358, disc. review denied, 360 N.C. 63, 623 S.E.2d

582 (2005). However, we note a paradox in the law.

       “Visible shackling undermines the presumption of innocence and the related

fairness of the fact finding process.” Deck, 544 U.S. at 630 (citation omitted). Under


       2  There are other unpublished opinions from our Court that uphold this waiver principle. See
e.g. State v. Anthony, ___ N.C. App. ___, 759 S.E.2d 712 (2014) (unpublished); State v. McDonald, 196
N.C. App. 791, 675 S.E.2d 719 (2009) (unpublished); State v. Black, 163 N.C. App. 611, 594 S.E.2d 258
(2004) (unpublished).

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                                  STATE V. SELLERS

                                  Opinion of the Court



current North Carolina law, other structural errors similar to shackling are not

preserved without objection at trial, and are waived on appeal. See State v. Garcia,

358 N.C. 382, 410, 597 S.E.2d 724, 745 (2004). Defendant’s appeal only raises a

statutory claim under N.C. Gen. Stat. § 15A-1031, which he waived.

      Nevertheless, trial judges should be aware that a decision by a sheriff to

shackle a problematic criminal defendant in a jail setting or in transferring a

defendant from the jail to a courtroom, is not, without a trial court order supported

by adequate findings of fact, sufficient to keep a defendant shackled during trial.

Failure to enter such an order can, under the proper circumstances, result in a failure

of due process. Deck, 544 U.S. 622.

                                  III. Conclusion

      For the foregoing reasons we hold Defendant waived his statutory challenge.

Therefore, we hold there is

      NO ERROR.

      Judges GEER and DILLON concur.




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