SECOND DIVISION MARKLE, J., LAND and DAVIS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 3, 2025
In the Court of Appeals of Georgia A24A1351. SCALES v. THE STATE.
DAVIS, Judge.
Following a jury trial in Carroll County Superior Court, Bernard Scales was
convicted of aggravated child molestation and child molestation. Scales now appeals
from the trial court’s denial of his motion for new trial, arguing that the use of a shock
device to restrain him during trial was unconstitutional and that his trial counsel
provided ineffective assistance by failing to object to the use of the device. For the
reasons set forth below, we affirm.
Viewed in the light most favorable to the verdict,1 the evidence at trial showed
that Scales molested one of his girlfriend’s twin 14-year-old daughters by engaging in
1 See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). vaginal intercourse with her, performing oral sex on her, and fondling her breasts, and
that he molested the other twin daughter by fondling her breasts. Scales was charged
by indictment with one count of aggravated child molestation (OCGA § 16-6-4 (c))
and three counts of child molestation (OCGA § 16-6-4 (a)). Following a trial in
November 2018, the jury found Scales guilty of all four charges. The trial court
sentenced Scales to a total of 25 years in confinement, to be followed by life on
probation.
Scales filed a motion for new trial, claiming for the first time that his
constitutional rights — specifically, his due process right to be present and
meaningfully participate in his own defense, his right to testify, his right to equal
protection, and his right against abuse of prisoners — were violated because he was
required to wear an electronic shock device known as a “Band-It” during trial.2 Scales
also claimed that his trial counsel rendered ineffective assistance by failing to object
to the use of the device.
At a hearing on the motion for new trial, Scales testified that he was distracted
and unable to make proper decisions at trial due to his fear of the Band-It being
2 Scales filed his initial motion for new trial in January 2019 but he did not raise any claim regarding the device until August 2022. 2 activated. However, trial counsel testified that he had been totally unaware of the
device, he had no problems communicating with Scales, and Scales appeared to
understand and be attentive during the trial proceedings.
In denying the motion for new trial, the trial court found that Scales failed to
demonstrate any harm to his constitutional right to testify and participate in his own
defense based on the use of the Band-It, and to the extent the court erred in failing to
hold a hearing prior to placing the device on him, any such error was harmless beyond
a reasonable doubt because ample grounds existed to authorize the use of the device.
The court stated the following in support: Scales outweighed the biggest deputy on
courthouse security by approximately 100 pounds, faced the possibility of a life
sentence, attempted to escape the court’s jurisdiction by absconding with the victims
halfway across the country, and made no complaint about wearing the device until his
amended motion for new trial. The device’s ability to remain hidden beneath Scales’
clothing — as opposed to visible leg shackles or a large security detail — and its lack
of known misfire rates made it the best option to avoid eroding his presumption of
innocence before the jury.
3 The trial court found that the use of the Band-It did not violate Scales’ equal
protection rights because incarcerated defendants are not a suspect class, and the use
of the device was intended to meet the legitimate state interests of maintaining safety
and order in the courtroom. The court found that Scales’ right against abuse of
prisoners was not violated because (1) the only potential harm he suffered was the fear
of receiving an electric shock, but he was informed of when the device would be
activated; (2) courthouse security testified that they typically warn defendants of
problematic behavior before activating the device; and (3) Scales gave no indication
that he was afraid of the device during trial.
Finally, the trial court rejected Scales’ ineffective assistance claim, finding that
trial counsel was not notified by Scales of any concerns regarding the device, did not
perceive anything unusual about his demeanor during trial, and was able to freely
converse with him during the trial itself and during breaks when he was not equipped
with the device. Scales then filed this appeal, reiterating his constitutional claims and
his ineffective assistance claim.
1. Under OCGA § 15-1-3 (1), a trial court has the power “[t]o preserve and
enforce order in its immediate presence and, as near thereto as is necessary, to prevent
4 interruption, disturbance, or hindrance to its proceedings.” “Use of security
measures to prevent dangerous or disruptive behavior that threatens the conduct of
a fair and safe trial is within the trial court’s discretion.” (Citation and punctuation
omitted.) Mohamed v. State, 307 Ga. 89, 91 (2) (a) (834 SE2d 762) (2019).
Pretermitting whether Scales waived his constitutional claims regarding the
Band-It by failing to raise any objection to the device at trial,3 and pretermitting
3 Georgia’s appellate courts have generally held that the failure to raise at trial any issue regarding a security measure used upon a defendant deprives the trial court of the opportunity to take remedial action and waives appellate review of any alleged impropriety. See, e.g., Mohamed v. State, 307 Ga. 89, 91 (2) (a) (834 SE2d 762) (2019); Weldon v. State, 297 Ga. 537, 541 (775 SE2d 522) (2015); Casas v. State, 368 Ga. App. 434, 439 (2) (890 SE2d 308) (2023); Campbell v. State, 333 Ga. App. 829, 833 (2) (777 SE2d 507) (2015). However, none of these cases involved a situation where the defendant’s trial counsel was apparently unaware of the security measure, and in Young v. State, 312 Ga. 71, 82-83 (16) (860 SE2d 746) (2021), the Supreme Court of Georgia indicated that there may not be a waiver of the issue for time periods when counsel is not so aware. Here, the evidence supports the trial court’s finding that trial counsel was not aware of the Band-It. Because we ultimately conclude that Scales’ constitutional rights were not violated by the use of the device, we need not decide whether he waived any objection to the device by failing to raise the issue with counsel or the trial court. 5 whether the trial court played any role in requiring him to wear the device,4 we
conclude that his constitutional claims lack merit.5
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SECOND DIVISION MARKLE, J., LAND and DAVIS, JJ.
NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules
February 3, 2025
In the Court of Appeals of Georgia A24A1351. SCALES v. THE STATE.
DAVIS, Judge.
Following a jury trial in Carroll County Superior Court, Bernard Scales was
convicted of aggravated child molestation and child molestation. Scales now appeals
from the trial court’s denial of his motion for new trial, arguing that the use of a shock
device to restrain him during trial was unconstitutional and that his trial counsel
provided ineffective assistance by failing to object to the use of the device. For the
reasons set forth below, we affirm.
Viewed in the light most favorable to the verdict,1 the evidence at trial showed
that Scales molested one of his girlfriend’s twin 14-year-old daughters by engaging in
1 See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). vaginal intercourse with her, performing oral sex on her, and fondling her breasts, and
that he molested the other twin daughter by fondling her breasts. Scales was charged
by indictment with one count of aggravated child molestation (OCGA § 16-6-4 (c))
and three counts of child molestation (OCGA § 16-6-4 (a)). Following a trial in
November 2018, the jury found Scales guilty of all four charges. The trial court
sentenced Scales to a total of 25 years in confinement, to be followed by life on
probation.
Scales filed a motion for new trial, claiming for the first time that his
constitutional rights — specifically, his due process right to be present and
meaningfully participate in his own defense, his right to testify, his right to equal
protection, and his right against abuse of prisoners — were violated because he was
required to wear an electronic shock device known as a “Band-It” during trial.2 Scales
also claimed that his trial counsel rendered ineffective assistance by failing to object
to the use of the device.
At a hearing on the motion for new trial, Scales testified that he was distracted
and unable to make proper decisions at trial due to his fear of the Band-It being
2 Scales filed his initial motion for new trial in January 2019 but he did not raise any claim regarding the device until August 2022. 2 activated. However, trial counsel testified that he had been totally unaware of the
device, he had no problems communicating with Scales, and Scales appeared to
understand and be attentive during the trial proceedings.
In denying the motion for new trial, the trial court found that Scales failed to
demonstrate any harm to his constitutional right to testify and participate in his own
defense based on the use of the Band-It, and to the extent the court erred in failing to
hold a hearing prior to placing the device on him, any such error was harmless beyond
a reasonable doubt because ample grounds existed to authorize the use of the device.
The court stated the following in support: Scales outweighed the biggest deputy on
courthouse security by approximately 100 pounds, faced the possibility of a life
sentence, attempted to escape the court’s jurisdiction by absconding with the victims
halfway across the country, and made no complaint about wearing the device until his
amended motion for new trial. The device’s ability to remain hidden beneath Scales’
clothing — as opposed to visible leg shackles or a large security detail — and its lack
of known misfire rates made it the best option to avoid eroding his presumption of
innocence before the jury.
3 The trial court found that the use of the Band-It did not violate Scales’ equal
protection rights because incarcerated defendants are not a suspect class, and the use
of the device was intended to meet the legitimate state interests of maintaining safety
and order in the courtroom. The court found that Scales’ right against abuse of
prisoners was not violated because (1) the only potential harm he suffered was the fear
of receiving an electric shock, but he was informed of when the device would be
activated; (2) courthouse security testified that they typically warn defendants of
problematic behavior before activating the device; and (3) Scales gave no indication
that he was afraid of the device during trial.
Finally, the trial court rejected Scales’ ineffective assistance claim, finding that
trial counsel was not notified by Scales of any concerns regarding the device, did not
perceive anything unusual about his demeanor during trial, and was able to freely
converse with him during the trial itself and during breaks when he was not equipped
with the device. Scales then filed this appeal, reiterating his constitutional claims and
his ineffective assistance claim.
1. Under OCGA § 15-1-3 (1), a trial court has the power “[t]o preserve and
enforce order in its immediate presence and, as near thereto as is necessary, to prevent
4 interruption, disturbance, or hindrance to its proceedings.” “Use of security
measures to prevent dangerous or disruptive behavior that threatens the conduct of
a fair and safe trial is within the trial court’s discretion.” (Citation and punctuation
omitted.) Mohamed v. State, 307 Ga. 89, 91 (2) (a) (834 SE2d 762) (2019).
Pretermitting whether Scales waived his constitutional claims regarding the
Band-It by failing to raise any objection to the device at trial,3 and pretermitting
3 Georgia’s appellate courts have generally held that the failure to raise at trial any issue regarding a security measure used upon a defendant deprives the trial court of the opportunity to take remedial action and waives appellate review of any alleged impropriety. See, e.g., Mohamed v. State, 307 Ga. 89, 91 (2) (a) (834 SE2d 762) (2019); Weldon v. State, 297 Ga. 537, 541 (775 SE2d 522) (2015); Casas v. State, 368 Ga. App. 434, 439 (2) (890 SE2d 308) (2023); Campbell v. State, 333 Ga. App. 829, 833 (2) (777 SE2d 507) (2015). However, none of these cases involved a situation where the defendant’s trial counsel was apparently unaware of the security measure, and in Young v. State, 312 Ga. 71, 82-83 (16) (860 SE2d 746) (2021), the Supreme Court of Georgia indicated that there may not be a waiver of the issue for time periods when counsel is not so aware. Here, the evidence supports the trial court’s finding that trial counsel was not aware of the Band-It. Because we ultimately conclude that Scales’ constitutional rights were not violated by the use of the device, we need not decide whether he waived any objection to the device by failing to raise the issue with counsel or the trial court. 5 whether the trial court played any role in requiring him to wear the device,4 we
conclude that his constitutional claims lack merit.5
4 At the hearing on the motion for new trial, a lieutenant with the Carroll County Sheriff’s Office in charge of courthouse security testified that (1) prior to 2012, the Carroll County Superior Court issued an order authorizing courthouse security to use the Band-It on every incarcerated defendant appearing for a felony trial; and (2) it was the practice and policy of courthouse security to use the device on every such defendant. The record does not contain a copy of any such order, and it is unclear what role, if any, the judge who presided over Scales’ trial played in the use of the device here. We have serious concerns about the legality of any blanket rule calling for the use of a shock device on every incarcerated defendant appearing for a felony trial, especially if the device is placed upon the defendant without notifying his counsel or the trial court judge, thereby depriving the judge of an opportunity to hold a hearing or make any findings on the issue. See Weldon v. State, 297 Ga. 537, 541-542 (775 SE2d 522) (2015) (Nahmias, J., concurring) (“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.”); but see Casas, supra, 368 Ga. App. at 438 (2) (“[T]he decisions of our Supreme Court do not require a trial court to make these findings on the record regarding the use of a shock device, and we need not reverse on account of the trial court’s failure to do so.”) (citation and punctuation omitted). However, in the instant case our task is confined to determining whether Scales was prejudiced by the use of the Band-It. 5 Although the Supreme Court of Georgia has jurisdiction over “[a]ll cases involving the construction of . . . the Constitution of the State of Georgia or of the United States,” our Court has jurisdiction over “cases that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution 6 (a) We conclude that the use of the Band-It on Scales did not violate his right
to be present and meaningfully participate in his own defense, including his right to
testify.
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. . . . [U]tilization 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.
(Citation and punctuation omitted.) Weldon v. State, 297 Ga. 537, 540-541 (775 SE2d
522) (2015); see also Campbell v. State, 333 Ga. App. 829, 832 (2) (777 SE2d 507)
(2015) (“While the use of a properly concealed shock device will never be so
inherently prejudicial as to pose an unacceptable threat to the defendant’s right to a
fair trial, the analysis should not end there if the defendant claims that the shock
to a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.” (Citations and punctuation omitted.) State v. Davis, 303 Ga. 684, 687-688 (1) (814 SE2d 701) (2018). We have jurisdiction over the instant case because it falls into the latter category. 7 device also violated his Sixth Amendment right to counsel or his due-process-based
right to be present at trial.”) (citation and punctuation omitted).
Significantly, Scales did not advise the trial court or trial counsel that the Band-
It had any impact on his ability to participate in his own defense, despite the fact that
he had opportunities to speak with counsel while not wearing the device. Regardless
of any waiver, this failure to contemporaneously complain about the device supports
the trial court’s finding that Scales was not harmed by the use of the device. See
Stanford v. State, 272 Ga. 267, 271 (8) (528 SE2d 246) (2000) (claim that trial court
erred in requiring pro se defendant to wear a stun belt lacked merit, where he never
raised an objection to wearing the belt); Campbell, supra, 333 Ga. App. at 833 (2) (trial
court did not abuse its discretion by ordering defendant to wear a stun belt, where he
only made one vague complaint about the belt at trial).
While Scales testified at the hearing on the motion for new trial that he was
generally distracted and unable to make proper decisions at trial due to his fear of the
Band-It being activated, we will not disturb the trial court’s decision to credit trial
counsel’s contrary testimony that counsel had no problems communicating with
Scales and that Scales appeared to understand and be attentive during the trial
8 proceedings. See Lovelace v. State, 262 Ga. App. 690, 697-698 (7) (586 SE2d 386)
(2003) (the trial court did not err in requiring the defendant to wear a stun belt,
despite his testimony that the belt prevented him from expressing himself openly,
where he did not specify how wearing the belt affected his communications with trial
counsel or his decision not to testify, and counsel was not aware until after the trial
that the defendant had been wearing the device). Finally, Scales was informed by
courthouse security of when the device would be activated and was told that he would
receive a warning before any activation.
Accordingly, Scales has not shown that the trial court erred in concluding that
his right to be present and meaningfully participate in his own defense was not
violated by the use of the device. See Young v. State, 312 Ga. 71, 82-83 (16) (860 SE2d
746) (2021) (the defendant’s constitutional rights were not violated by the placement
of a stun belt on him at trial, despite the trial court’s failure to hold a hearing on the
issue, where the device did not prevent the defendant from conferring with counsel,
the officers who fitted the defendant with the device explained to him the operation
of the device including what would warrant it being activated and the fact that
warnings would be issued before activation, and the defendant did not complain about
9 the device at trial). Given Scales’ failure to show harm, his assertion that the trial
court erred in requiring him to wear the device without holding a hearing on the issue
is unavailing. See Casas v. State, 368 Ga. App. 434, 438 (2) (890 SE2d 308) (2023)
(even if the trial court erred by failing to make certain findings regarding the use of a
shock device on the defendant, any such error was not reversible because he failed to
establish that he was harmed or prejudiced by the device); Garner v. State, 342 Ga.
App. 824, 825-826 (1) (805 SE2d 464) (2017) (same).
(b) We conclude that the use of the Band-It on Scales did not violate his equal
protection rights.
Generally speaking, the guarantee of equal protection is concerned with arbitrary government classification, and it requires that the law treat similarly situated persons alike, unless adequate reason exists to treat them differently. Accordingly, to show a denial of equal protection, one first must demonstrate that the law treats him differently than similarly situated persons. If it is shown that the law, in fact, treats him differently than similarly situated persons, a court must then inquire whether adequate reason exists for doing so. Differential treatment that is based on an inherently suspect classification or that interferes with the exercise of a fundamental right is subject to strict scrutiny, and such treatment ordinarily can be justified only when it is sufficiently related to a compelling state interest. Differential treatment that neither involves a suspect classification nor interferes with a fundamental right, however, 10 is subject to less exacting scrutiny, and it generally can be justified when rationally related to a legitimate state interest.
(Citations and punctuation omitted.) Nicely v. State, 291 Ga. 788, 792 (2) (733 SE2d
715) (2012).
“[A] prisoner, by virtue of incarceration alone, is not a member of a suspect
class for equal protection analysis.” Drew v. State, 285 Ga. 848, 850 (2) (684 SE2d
608) (2009). And requiring incarcerated defendants to wear Band-Its at criminal trials
is rationally related to the legitimate state interest in the safety and security of trials.
See Ridley v. State, 232 Ga. 646, 649 (208 SE2d 466) (1974) (“Lawful incarceration
brings about the necessary withdrawal or limitation of many privileges and rights, a
retraction justified by the considerations underlying our penal system.”) (citation
omitted). It is rational to think that incarcerated defendants may pose a greater
security risk at trial than defendants who have been released on bail because before a
defendant may be released on bail, a court must find that he does not pose a risk of
fleeing or pose a significant threat to the community. See OCGA § 17-6-1 (e) (1).
(c) We conclude that the use of the Band-It on Scales did not violate his right
to be free from abuse as a prisoner.
11 Due process prohibits “punishment” of a pre-trial detainee, and no person shall
be “abused” while under arrest. See Long v. Jones, 208 Ga. App. 798, 799 (1) & 800
(3) (432 SE2d 593) (1993). “[I]f a particular condition or restriction of pretrial
detention is reasonably related to a legitimate governmental objective, it does not,
without more, amount to ‘punishment.’” (Citation omitted.) Id. at 801 (3). Here, the
Band-It was never activated, so the State did not inflict any actual physical
punishment or pain upon Scales. Any mental punishment or pain caused by Scales’
fear of the device being activated did not rise to the level of abuse because he did not
complain about the device to trial counsel or the trial court, he was informed by
courthouse security of when the device would be activated, and he was told that he
would receive a warning before any activation. Further, as discussed above in Division
(1) (b), the use of the device was reasonably related to the legitimate governmental
objective of courtroom security. Accordingly, Scales’ right to be free from abuse as a
prisoner was not violated.
2. In support of his claim that trial counsel rendered ineffective assistance by
failing to object to the use of the Band-It, Scales argues that while counsel testified
that he was unaware of the device, courthouse security testified that they informed
12 counsel of the device, and the court failed to find whether counsel was so aware. We
conclude that the court did not err in denying Scales’ ineffective assistance claim.
Under the familiar standard of Strickland v. Washington, 466 U. S. 668 (104 SCt
2052, 80 LE2d 674) (1984), to establish ineffective assistance of counsel a defendant
“must satisfy a two-part test: that his counsel’s performance was professionally
deficient and that he was prejudiced by the deficient performance.” Davis v. State,
306 Ga. 140, 143 (3) (829 SE2d 321) (2019). “Under the first prong of this test,
counsel’s performance will be found deficient only if it was objectively unreasonable
under the circumstances and in light of prevailing professional norms.” (Citation
omitted.) Martin v. State, 360 Ga. App. 1, 4 (1) (860 SE2d 582) (2021). “And under
the second prong, prejudice is demonstrated only where there is a reasonable
probability that, absent counsel’s errors, the result of the trial would have been
different.” (Citation omitted.) Id. “Failure to satisfy either prong of the Strickland test
is sufficient to defeat a claim of ineffective assistance, and it is not incumbent upon
this Court to examine the other prong.” (Citation omitted.) Id.
In reviewing a claim of ineffective assistance, this Court upholds a trial court’s
factual findings and credibility determinations unless clearly erroneous, but we review
13 de novo the trial court’s legal conclusions. Walker v. State, 347 Ga. App. 163, 165 (1)
(816 SE2d 849) (2018). Indeed, “the trial court, not this Court, is the judge of witness
credibility, and a trial court’s denial of an ineffectiveness claim based on conflicting
evidence is not clearly erroneous.” (Citation omitted.) Martin, supra, 360 Ga. App.
at 4 (1).
We conclude that Scales has failed to demonstrate that trial counsel performed
deficiently by not objecting to the use of the Band-It. The trial court credited and
emphasized counsel’s testimony that Scales did not notify him of any concerns
regarding the device. We may not disturb the court’s finding in this respect, nor may
we disturb its findings that counsel did not perceive anything unusual about Scales’
demeanor and was able to freely converse with him throughout trial. See Martin,
supra, 360 Ga. App. at 4 (1). Given these findings, we are not convinced that the court
placed any credence in the conflicting evidence indicating that counsel was aware of
the device, and the court’s specific findings regarding counsel’s perception of and
interactions with Scales support the conclusion that counsel did not perform
deficiently. See id. at 6 (1) (a) (refusing to disturb trial court’s credibility finding that
counsel was not given the names of potential witnesses despite the defendant’s
14 testimony that he gave the names to counsel); see also Hughes v. State, 296 Ga. 744,
747 (1) (770 SE2d 636) (2015) (“We usually assume that trial judges have done their
job, and especially where, as here, the trial court has made extensive findings of fact,
we generally must presume that the absence of a finding of a fact that would tend to
undermine the conclusion of the trial court reflects a considered choice to reject the
evidence offered to prove that fact[.]”). Accordingly, Scales’ claim of ineffective
assistance fails.
For the foregoing reasons, we affirm Scales’ judgment of conviction and
sentence and the denial of his motion for new trial.
Judgment affirmed. Markle and Land, JJ., concur.