An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-301 NORTH CAROLINA COURT OF APPEALS Filed: 7 January 2014
STATE OF NORTH CAROLINA
Robeson County v. No. 08 CRS 53464
CHRISTOPHER LEE LOCKLEAR
Appeal by defendant from judgments entered 13 July 2012 by
Judge James G. Bell in Robeson County Superior Court. Heard in
the Court of Appeals 27 August 2013.
Attorney General Roy Cooper, by Special Deputy Attorney General John H. Watters, for the State.
Appellate Defender Staples Hughes, by Assistant Appellate Defender Constance E. Widenhouse, for Defendant.
ERVIN, Judge.
Defendant Christopher Lee Locklear appeals from judgments
sentencing him to life imprisonment without the possibility of
parole based upon his conviction for first degree murder and to
51 to 71 months imprisonment based upon his conviction for
robbery with a dangerous weapon. On appeal, Defendant argues
that the trial court committed prejudicial error by ordering
that Defendant and his co-defendants wear “stun vests” operated -2- by uniformed officers seated behind them during the trial and by
instructing the jury that evidence of Defendant’s flight could
be considered for the purpose of showing a consciousness of
guilt on his part. After careful consideration of Defendant’s
challenges to the trial court’s judgments in light of the record
and the applicable law, we conclude that the trial court’s
judgments should remain undisturbed.
I. Factual Background
A. Substantive Facts
On 31 March 2008, Antonio Locklear went to the home of his
cousin, Larry Wayne Locklear, for the purpose of purchasing
marijuana. At the time, Mr. Locklear lived with his girlfriend,
Jessica Cahoon, and her parents in Fayetteville, while Larry
Wayne Locklear lived in a mobile home on Tonya Locklear Road in
Robeson County. Mr. Locklear usually went to Robeson County
every second or third day to buy marijuana from Larry Wayne
Locklear for the purpose of resale.1
At approximately 8:00 p.m. on 31 March 2008, Ms. Cahoon
drove Mr. Locklear to Larry Wayne Locklear’s house in her Honda
Civic. At that location, Mr. Locklear purchased thirteen
1 In addition to acknowledging that he was a drug dealer, Mr. Locklear was serving a federal sentence at the time of Defendant’s trial and admitted that his federal sentence might be reduced based upon his cooperation with the State in connection with Defendant’s trial. -3- packages of marijuana that had each been compressed into the
shape of an automobile license plate. Upon returning to
Fayetteville, Mr. Locklear discovered that each package of
marijuana weighed less than the agreed-upon amount. In light of
that discovery, Ms. Cahoon drove Mr. Locklear back to Larry
Wayne Locklear’s house in order to obtain the additional amount
of marijuana to which Mr. Locklear was entitled.
As Ms. Cahoon and Mr. Locklear approached Larry Wayne
Locklear’s residence, they noticed that they were being followed
by an older, brown two-door Cadillac. Mr. Locklear had never
seen the two-door Cadillac before that night. While Ms. Cahoon
pulled into the driveway at Larry Wayne Locklear’s house, the
Cadillac continued down the road, turned around, and slowly
drove by Larry Wayne Locklear’s house a second time.
Ms. Cahoon waited in the car while Mr. Locklear went inside
to get the additional marijuana from Larry Wayne Locklear. At
approximately 11:55 p.m., Mr. Locklear returned to Ms. Cahoon’s
vehicle carrying the additional marijuana that he had obtained
from Larry Wayne Locklear in a plastic trash bag. Upon entering
Ms. Cahoon’s Honda, Mr. Locklear placed the bag of marijuana on
the floorboard. As the return trip to Fayetteville began, Mr.
Locklear noticed the brown Cadillac that had followed them -4- earlier parked beside the road at an intersection. Mr. Locklear
could not tell how many people were in the Cadillac.
At the time that Ms. Cahoon’s Honda passed the Cadillac,
the Cadillac pulled in behind them. After accelerating rapidly,
the Cadillac pulled alongside Ms. Cahoon’s Honda. As Ms. Cahoon
asked, “What’s going on, baby?,” Mr. Locklear observed that
someone was hanging out of the Cadillac’s passenger side and saw
that person fire three shots at the Honda using a rifle. After
the shots were fired, Ms. Cahoon’s head hit the steering wheel.
Mr. Locklear threw up his arms in an attempt to protect himself
and put the back of his car seat all the way down so that his
head was below the level of the window.
As the Honda slowed to a stop with its engine still
running, the Cadillac cut in front of the Honda. Ms. Cahoon was
motionless and slumped over the steering wheel. According to
Mr. Locklear, two men, one of whom wore a hoodie and carried a
shotgun or rifle and the other of whom wore a long white shirt
and carried a black gun, emerged from the Cadillac. Mr.
Locklear identified Defendant, whom he had previously seen, as
the man in the white shirt.2 After the man with the hoodie went
to the passenger’s side of the Honda and said, “Give it up, you
M-F’er,” Mr. Locklear got out of the Honda, crawled around to 2 Mr. Locklear initially described the individual in the white shirt as African American. -5- the rear of the vehicle, and crouched behind the passenger side
corner. Upon hearing two guns fire repeatedly into the Honda,
Mr. Locklear threw up his hands and yelled that the occupants of
the Cadillac should not kill him. However, Mr. Locklear did not
think that the assailants could see him or hear him over the
sound of the gunfire. As a result, Mr. Locklear ran across the
road and jumped into a drainage ditch full of water and trash
that ran alongside the road.
After he surfaced, Mr. Locklear heard more gunshots and saw
vehicle lights approaching from the direction of Fayetteville.
Once the man in the white shirt had reached into the passenger
door of the Honda and grabbed the bag of marijuana from the
floorboard, the two men reentered the passenger side of the
Cadillac, which drove off in the direction of Fayetteville. An
examination of the scene indicated that at least ten shots were
fired into the Honda and that a shotgun, a rifle, and two nine
millimeter firearms were used during the shooting.
Although Mr. Locklear tried to flag down the approaching
car after getting out of the drainage ditch, the vehicle swerved
around him without stopping. As he began running to Larry Wayne
Locklear’s house to get help, Mr. Locklear tried without success -6- to flag down a second passing car.3 After Mr. Locklear reached
Larry Wayne Locklear’s house, Larry Wayne Locklear’s girlfriend,
India Rose Locklear, called 911.
About a week after the shooting, Mr. Locklear received a
voicemail from a person who identified himself as Isaac in which
the caller denied having had anything to do with the shooting.
Mr. Locklear subsequently identified a man named Isaac Nesby as
the man in the hoodie after viewing a photographic lineup.
Although Mr. Nesby was arrested and charged with involvement in
the shootings, the charges against him were subsequently
dismissed. At trial, Mr. Locklear testified that Mr. Nesby’s
nephew, Decario Whitfield, who allegedly resembled Mr. Nesby in
appearance, was actually the man wearing the hoodie at the time
of the shootings. After being charged with the murder of Ms.
Cahoon along with Defendant, Kenryn McMillian, and Cheyenne
Woods, Mr. Whitfield was allowed to plead guilty to conspiracy
to commit robbery with a dangerous weapon and testified on
behalf of the State.4
3 Connie Cummings, who drove one of the cars that travelled past the scene of the shooting, testified that she saw Mr. Locklear jump out of the ditch and try to wave her down, that she saw Kenryn McMillian and another dark-skinned person at the scene, and that, rather than stopping to render assistance, she swerved around Mr. Locklear and kept going. 4 Mr. Whitfield initially refused to make a statement to investigating officers and only provided the account reflected -7- Mr. Whitfield testified that, on 31 March 2008, he
accompanied his uncle, Mr. Nesby, to the home of Mr. Woods’
mother so that Mr. Nesby could purchase a Cadillac. At the time
of their arrival at the residence of Mr. Woods’ mother,
Defendant, Mr. Woods, and Mr. McMillian were present. After Mr.
Whitfield asked Mr. Nesby if he could borrow the Cadillac to go
get something to eat, Mr. Whitfield, Mr. McMillian, Mr. Woods,
and Defendant left the premises in the Cadillac with Mr.
McMillian driving, Defendant riding in the front passenger seat,
Mr. Whitfield riding in the rear passenger-side seat, and Mr.
Woods riding in the rear driver’s-side seat. At the time of
their departure, Mr. Whitfield, who was wearing a hoodie, had a
black shotgun with a pistol grip; Defendant had a black
automatic rifle; and Mr. Woods had a nine millimeter handgun.
After traveling for some distance down a road with which
Mr. Whitfield was unfamiliar, Mr. McMillian turned around and
drove past a particular trailer at a very slow rate of speed.
Upon leaving that location, Mr. McMillian drove through an
intersection, stopped on the side of the road, and remained
there for some period of time. Once a vehicle that had been at
the trailer which they had previously observed passed through
the intersection, Mr. McMillian began following it.
in his trial testimony after having reached a plea agreement with the prosecution. -8- Although Mr. McMillian flashed the Cadillac’s headlights at
the other vehicle in an attempt to get it to stop, the other
vehicle sped up instead. After pulling up alongside the other
vehicle, Mr. McMillian stated that the group should stop the car
by shooting out its tires. As he hung outside the front
passenger side window, Defendant fired two shots at the car with
the rifle. The other car gradually came to a stop after the
firing of the second shot, allowing Mr. McMillian to pull the
Cadillac in front of the other car.
As soon as both cars had stopped, the occupants of the
Cadillac got out of that vehicle. Once the group had exited
the Cadillac, Mr. Whitfield fired the shotgun over the roof of
the other car. The nine millimeter handgun held by Mr. Woods
was fired at some point during this event as well.
After Mr. Whitfield fired the shotgun, the passenger door
of the other car opened and a male occupant stepped out.
Although Mr. Whitfield fired again, the man made it to the rear
of the other car, at which point he was no longer visible. As
Mr. Whitfield walked to the other side of the car in order to
look for the man, he could see through the front windshield that
another occupant of the car had been shot. In the meantime,
Defendant went to the passenger side of the other vehicle and
retrieved a plastic bag full of drugs. -9- As the occupants of the Cadillac saw other cars
approaching, they reentered the Cadillac and drove away for the
purpose of disposing of their weapons, eventually reaching a
dirt road where Mr. Woods disposed of the rifle and the handgun.
The group then went to the residence of Mr. Woods’ mother, where
they left the shotgun, retrieved Defendant’s van, took the
Cadillac and the van to another dirt road, and set fire to the
Cadillac. After burning the Cadillac, the group left in
Defendant’s van and dropped Mr. Whitfield, who took a portion of
the stolen marijuana with him, off at his father’s house.
On 3 April 2008, Agent Ricky Williams of the Robeson County
Sheriff’s Department was part of a team assigned to conduct
surveillance at the Motel 6 in Lumberton in an effort to locate
a gray Chevrolet Astro van and Defendant, Mr. Woods, and Mr.
McMillian. During the surveillance process, Agent Williams
observed Defendant emerge from a room in the Motel 6, put some
shoes into the gray van, and return to the room. When the van
subsequently left the motel, Agent Williams followed the vehicle
and eventually stopped it for driving left of center.
At the time of this traffic stop, a woman was driving the
van, with Defendant and Mr. Woods occupying the rear seat. In
the process of conducting a consent search of the van, Agent
Williams discovered three packages of marijuana in a black trash -10- bag in the back of the van. The packages of marijuana that
Agent Williams found in the van were compressed into the shape
of license plates, a configuration which Agent Williams had
never seen before.
On 24 April 2008, Sergeant Lee Wilkerson of the Parkton
Police Department stopped a vehicle in which Mr. Woods was a
passenger. After giving Sergeant Wilkerson a false name and
date of birth, Mr. Woods fled on foot after being asked to step
out of the vehicle. Shotgun shells recovered at the scene of
the shooting had been fired from a shotgun which Sergeant
Wilkerson seized during a search of the vehicle in which Mr.
Woods was riding.
Mr. Locklear sustained gunshot wounds in the upper left
arm, the back of his right forearm, and his upper right shoulder
at the time of the shooting. Ms. Cahoon was pronounced dead at
the scene of the shooting as a result of her injuries.
According to Dr. John Butts, Ms. Cahoon died from a high-
velocity gunshot wound to the head, with the nature of Ms.
Cahoon’s injuries being more consistent with those typically
inflicted by a rifle compared with those inflicted by a handgun.
B. Procedural History
On 23 May 2008, a warrant for arrest charging Defendant
with murder, shooting into an occupied vehicle, and robbery with -11- a dangerous weapon was issued. On 16 February 2009, the Robeson
County grand jury returned a bill of indictment charging
Defendant with first degree murder, shooting into an occupied
vehicle, and robbery with a dangerous weapon. The charges
against Defendant, along with similar charges that had been
lodged against Mr. McMillian and Mr. Woods, came on for trial
before the trial court and a jury at the 25 June 2012 criminal
session of Robeson County Superior Court. On 12 July 2012, the
jury returned a verdict convicting Defendant of robbery with a
dangerous weapon, discharging a firearm into occupied property,
and first degree murder on the basis of the felony murder rule
using shooting into an occupied vehicle as the predicate felony
and on the basis of lying in wait.5 At the conclusion of the
ensuing sentencing hearing, the trial court arrested judgment on
the discharging a firearm into an occupied vehicle conviction,
entered judgment sentencing Defendant to 51 to 71 months
imprisonment based upon his conviction for robbery with a
dangerous weapon, and entered judgment sentencing Defendant to a
consecutive term of life imprisonment without parole based upon
his conviction for first degree murder. Defendant noted an
appeal to this Court from the trial court’s judgments. 5 The jury did not find Defendant guilty of first degree murder based on malice, premeditation, and deliberation or the felony murder rule using robbery with a dangerous weapon as the predicate felony. -12- II. Substantive Legal Analysis
A. Use of Restraints at Trial
In his initial challenge to the trial court’s judgments,
Defendant argues that the trial court, by requiring Defendant to
wear a “stun vest” underneath his clothing and operated by a
uniformed officer seated on the row behind Defendant during the
trial violated, N.C. Gen. Stat. § 15A-1031 and his state and
federal constitutional rights to a fair trial. Although
Defendant is correct in noting that the trial court had an
inadequate basis for requiring Defendant to wear the “stun vest”
and that the trial court failed to comply with the requirements
of N.C. Gen. Stat. § 15A-1031 at the time that the restraints in
question were approved, we conclude that the trial court’s
errors were harmless beyond a reasonable doubt. As a result,
Defendant is not entitled to relief from the trial court’s
judgments based upon this argument.
1. Applicable Legal Principles
As a general proposition, “a defendant in a criminal case
is entitled to appear at trial free from all bonds or shackles
except in extraordinary instances.” State v. Tolley, 290 N.C.
349, 365, 226 S.E.2d 353, 366 (1976). However, the trial court
“may order a defendant [] subjected to physical restraint in the
courtroom when the judge finds the restraint to be reasonably -13- necessary to maintain order, prevent the defendant’s escape, or
provide for the safety of persons.” N.C. Gen. Stat. § 15A–1031
(2013). “‘What is forbidden - by the due process and fair trial
guarantees of the Fourteenth Amendment to the United States
Constitution and Art. I, Sec. 19 of the North Carolina
Constitution - is physical restraint that improperly deprives a
defendant of a fair trial.’” State v. Simpson, 153 N.C. App.
807, 809, 571 S.E.2d 274, 276 (2002) (quoting State v. Wright,
82 N.C. App. 450, 451, 346 S.E.2d 510, 511 (1986)). When a
challenge to a trial court’s decision to restrain a criminal
defendant is advanced before an appellate court, “the test on
appeal is whether, under all of the circumstances, the trial
court abused its discretion.” Tolley, 290 N.C. at 369, 226
S.E.2d at 369.
According to Tolley and N.C. Gen. Stat. § 15A–1031, a trial
judge must follow the proper procedures in determining that a
defendant should remain shackled or be otherwise restrained
during trial. State v. Lee, __ N.C. App. __, __, 720 S.E.2d
884, 890, disc. review improvidently granted, 366 N.C. 329, 734
S.E.2d 571 (2012). As part of this process, the trial court
must enunciate, in the presence of the defendant and out of the
presence of the jury, the particular reasons underlying the
decision to place the defendant under restraint and afford the -14- defendant an opportunity to object or otherwise be heard.
Tolley, 290 N.C. at 368, 226 S.E.2d at 368; N.C. Gen. Stat. §
15A–1031(1) and (2). In addition, unless the defendant
expressly requests to the contrary, the trial court must
instruct the jurors to refrain from considering the existence of
the restraint in weighing the evidence or determining the issue
of the defendant’s guilt. N.C. Gen. Stat. § 15A–1031(3). If
the defendant objects to the use of restraints, the trial judge
should conduct a full evidentiary hearing and make formal
findings of fact. Tolley, 290 N.C. at 368, 226 S.E.2d at 368;
N.C. Gen. Stat. § 15A–1031. In considering whether a defendant
should be restrained, the trial court should consider, among
other things:
[T]he seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self- destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.
Tolley, 290 N.C. at 368, 226 S.E.2d at 368. As this Court has
emphasized, “[s]hould the trial judge, in his sound discretion,
decide shackling is a necessary means for a safe and orderly -15- trial in his or her courtroom, the determination must be
supported by adequate findings.” State v. Jackson, 162 N.C.
App. 695, 700, 592 S.E.2d 575, 578 (2004) (emphasis added).
2. “Stun Vests”
As we have already noted, the trial court ordered Defendant
and his co-defendants to wear “stun vests” underneath their
clothing during trial. The “stun vests” in question were
operated by uniformed officers, who sat behind each defendant
and were instructed to activate the vests only in the event that
such an action was necessary to prevent one or more of the
restrained individuals from engaging in violent outbursts or
attacking someone. After the trial court gave Defendant the
opportunity to object to the use of the “stun vest,” Defendant
argued that he had not exhibited any behavior which justified
the imposition of this sort of restraint, that there were no
extraordinary circumstances which justified the imposition of
the proposed restraint, and that the placement of uniformed
officers behind Defendant created a presumption of dangerousness
and guilt. On the other hand, the State argued that the
recommendation that the “stun vests” be used had been made by
jail personnel on the basis of a perception that the use of
these devices was necessary to preserve courtroom safety in
light of certain unspecified incidents which had taken place in -16- the jail involving “defendants.” After hearing the arguments of
counsel, the trial court, without making any findings of fact or
providing any explanation for its decision, approved the use of
the “stun vests” and the seating of the uniformed officers
behind the table at which Defendant and his co-defendants were
seated. No similar law enforcement presence was apparent
anywhere else in the courtroom.
As an initial matter, we note that nothing presented to the
trial court provided any particular basis for restraining
Defendant. Although the unsworn information presented to the
trial court suggested that Mr. McMillian had posed significant
problems for the jail staff during his time in pretrial
detention and that “defendants” had created certain unspecified
problems in the jail, the record contains no suggestion that
there was any basis for believing that Defendant posed any
escape risk or threat to others of the type that has
traditionally been utilized to justify the use of shackles or
other restraints. As a result, given that Mr. McMillian’s prior
conduct does not justify placing Defendant under restraint;
given that the fact that the jury could not see the “stun vest”
which Defendant and his co-defendants were required to wear has
no bearing on the extent to which the trial court’s decision to
restrain Defendant was erroneous, Jackson, 162 N.C. App. at 701, -17- 592 S.E.2d at 579 (stating that the “obligation [to refrain from
ordering that a defendant be shackled or otherwise restrained in
the absence of compliance with applicable legal requirements] is
not excused when attempts are made to conceal from the jury the
fact that the defendant is shackled” on the theory that “the
concerns that shackling interferes with the defendant’s thought
processes and communications with counsel, and affronts the
dignity of the trial process, are not cured by mere concealment
from the jury”); and given that the record developed before the
trial court shows no additional support for placing Defendant
under restraint other than a generalized expression of concern
by the jail staff, Lee, __ N.C. App. at __, 720 S.E.2d at 891
(holding that “the trial court’s sole reason for denying
defendant’s request to remove his shackles during trial was that
defendant was financially unable to make bond and therefore
required to remain in shackles pursuant to jail policy” and that
“requiring defendant to remain in shackles during trial in the
presence of the jury under these conditions is inherently
prejudicial”), we conclude that the trial court lacked a
sufficient basis to justify requiring Defendant to wear a “stun
vest” during the trial.
In addition, the trial court failed to comply with the
requirements of N.C. Gen. Stat. § 15A-1031 in deciding that -18- Defendant should be restrained. More specifically, the trial
court did not provide any explanation for its decision to
subject Defendant to the restraints in question or make findings
of fact in support of its determination. Furthermore, the
record contains no indication that the trial court ever
instructed the jury to refrain from considering the fact that
Defendant had been restrained in weighing the evidence or
determining his guilt or ever obtained Defendant’s approval of a
decision to refrain from delivering such an instruction.
Finally, even though Defendant objected to the restraints to
which he was subjected, the trial court simply heard the
argument of counsel concerning the validity of Defendant’s
objections to the use of the restraints in question and never
heard any evidence directed toward the criteria enunciated in
Tolley.6 As a result, the trial court failed to comply with the
requirements of N.C. Gen. Stat. § 15A-1031 in the course of
determining that Defendant should be required to wear a “stun
6 Admittedly, the record does not reflect that Defendant ever requested that such a hearing be held. However, we need not determine whether Defendant’s failure to request that such a hearing be held excuses the fact that the trial court did not hear evidence concerning the appropriateness of requiring Defendant and his co-defendants to wear “stun vests” given our determination that any errors committed by the trial court were harmless beyond a reasonable doubt. -19- Neither an erroneous decision to shackle or otherwise
restrain a defendant nor a violation of N.C. Gen. Stat. § 15A-
1031 requires us to award a new trial or other appellate relief
in the absence of a showing of prejudice. Simpson, 153 N.C.
App. at 808, 571 S.E.2d at 275 (stating that, “[w]hile we agree
with defendant that the trial court did not fully comply with
the requirements of [N.C. Gen. Stat.] § 15A-1031, he has not
shown prejudice requiring a new trial”); Wright, 82 N.C. App. at
452, 346 S.E.2d at 511 (stating that “new trials are granted
only for errors that are prejudicial”). In determining whether
the trial court’s decision to require Defendant to wear a “stun
vest” and its failure to comply with N.C. Gen. Stat. § 15A-1031
necessitate an award of appellate relief, we will attempt to
ascertain whether the trial court’s errors were harmless beyond
a reasonable doubt. Wright, 82 N.C. App. at 452, 346 S.E.2d at
511 (evaluating whether a defendant was entitled to a new trial
as the result of an allegedly erroneous decision to restrain the
defendant utilizing the “harmless beyond a reasonable doubt”
standard enunciated in N.C. Gen. Stat. § 15A-1443(b)). We are
unable to avoid the conclusion that the trial court’s errors in
this case were harmless beyond a reasonable doubt.
A careful review of the record provides no indication that
the jury was affected by, or even aware of, the fact that -20- Defendant was wearing the “stun vest.” As this Court has
previously noted, “where the record fails to disclose that a
defendant’s shackles were visible to the jury, ‘the risk is
negligible that the restraint undermined the dignity of the
trial process or created prejudice in the minds of the jurors,’
and the defendant will not be entitled to a new trial on that
basis.” Simpson, 153 N.C. App. at 809-10, 571 S.E.2d at 276
(quoting State v. Holmes, 355 N.C. 719, 729, 565 S.E.2d 154,
163, cert. denied, 537 U.S. 1010, 123 S. Ct. 478, 154 L. Ed. 2d
412 (2002)). Although Defendant argues that he was prejudiced
because the trial court required him to wear the “stun vest” on
the theory that the vest “interfered with [his] thought
processes, his ability to stay focused on the proceedings, and
the ease of his communication with counsel,” the record contains
no support for this assertion other than a reference to the fact
that the vests were uncomfortable and distracting.
The compelling evidence of Defendant’s guilt provides
additional support for our conclusion that the trial court’s
errors were harmless beyond a reasonable doubt. See State v.
Thomas, 134 N.C. App. 560, 570, 518 S.E.2d 222, 229 (finding no
prejudice when Defendant appeared before the jury in shackles
due to the overwhelming evidence of the defendant’s guilt),
disc. review denied, 351 N.C. 119, 541 S.E.2d 468 (1999); Lee, -21- __ N.C. App. at __, 720 S.E.2d 884, 891-92 (concluding that,
even though the trial court failed to follow the statutorily
required procedures or to consider factors relevant to a
restraint-related decision, this Court “fail[ed] to see how
defendant’s shackling contributed to his convictions” in light
of the overwhelming evidence of his guilt). As even a cursory
perusal of the record shows, Defendant was identified as one of
the principal perpetrators of the assault on Ms. Cahoon and Mr.
Locklear by the surviving victim. In addition, one of the
participants in the commission of these crimes described his
participation, and that of Defendant, in the murder, shooting,
and robbery in chilling detail. Although there were admittedly
grounds for challenging the testimony of these witnesses based
on their criminal histories and interests in the proceeding, the
record provides no basis for an inference that Mr. Locklear and
Mr. Whitfield had colluded to develop their essentially
identical accounts of Defendant’s involvement in the shooting
and robbery. Finally, what appears to have been the stolen
marijuana was seized from Defendant’s van, providing an even
stronger justification for a finding of guilt. Thus, given that
the jury did not ever learn that Defendant was wearing a “stun
vest” and the overwhelming evidence of Defendant’s guilt, we
conclude beyond a reasonable doubt that the jury would not have -22- reached a different verdict if Defendant had not been forced to
wear a “stun vest” during his trial.
3. Uniformed Security Personnel
Secondly, Defendant argues that, even if the jury was
unable to see the “stun vests” which he and his co-defendants
were required to wear, its members could see the uniformed
officers who were seated directly behind them and that the
presence of these uniformed officers suggested to the jury that
they were dangerous and were, for that reason, probably guilty
in violation of his right to receive a fair trial. We do not
believe that Defendant’s argument is meritorious.
In Holbrook v. Flynn, the United States Supreme Court
considered the extent to which the presence of identifiable
security personnel during a defendant’s trial deprived the
defendant of a fair trial and concluded that a case-by-case
approach should be utilized in examining such issues. Holbrook
v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L. Ed. 2d
525, 535 (1986) (cited in State v. Maness, 363 N.C. 261, 281,
677 S.E.2d 796, 809 (2009), cert denied, 559 U.S. 1052, 130 S.
Ct. 2349, 176 L. Ed. 2d 568 (2010)). In Holbrook, four
uniformed state troopers sat in the first row behind the
defendants at trial. Id. at 562-63, 106 S. Ct. at 1342-43, 89
L. Ed. 2d at 530. In response to an argument that this -23- substantial law enforcement presence deprived the defendants of
a fair trial, Id. at 570, 106 S. Ct. at 1346, 89 L. Ed. 2d at
535, the Supreme Court “simply [could not] find an unacceptable
risk of prejudice in the spectacle of four such officers quietly
sitting in the first row of a courtroom’s spectator section.”
Id. at 571, 106 S. Ct. at 1347, 89 L. Ed. 2d at 536. According
to the Supreme Court, even if the members of the jury been aware
that the troopers had been deployed for security-related
purposes and that the presence of this many security officers
was not consistent with routine practice, there was no reason to
believe that the troopers’ presence tended to brand the
defendants in the jury’s eyes “with an unmistakable mark of
guilt” or that the jury was likely to treat the presence of
these troopers as anything other than the level of security
necessary to permit the trial to proceed. Id. As a result, the
United States Supreme Court declined to provide any relief on
appeal.
We are unable to distinguish the facts of this case from
those present in Holbrook in any meaningful way. As in
Holbrook, uniformed officers sat in the row behind the
defendants during the trial. Although the officers in question
were positioned near Defendant and his co-defendants for the
purpose of operating the “stun vests,” nothing in the record in -24- any way tends to indicate that the jurors knew that Defendant
and his co-defendants were wearing “stun vests,” much less that
the officers were positioned as they were in order to operate
such pieces of equipment. During its preliminary remarks, the
trial court told the jury that “[w]e also have three other
bailiffs sitting in the courtroom” and that “their position in
the courtroom is to separate the audience, the folks in the
audience from the folks sitting at the defense table.” In light
of our belief that the jury was unlikely to view the presence
and positioning of the officers “as a sign of anything other
than a normal official concern for the safety and order of the
proceedings,” Holbrook at 571, 106 S. Ct. at 1347, 89 L. Ed. 2d
at 536, we cannot agree with Defendant that the presence of the
officers deprived him of a fair trial. As a result, the trial
court did not err by allowing the officers operating the “stun
vests” to sit in the row behind Defendant at trial. Thus,
neither of Defendant’s challenges to the security measures
approved by the trial court for use during Defendant’s trial
have merit.
B. Flight Instruction
Finally, Defendant contends that the trial court erred by
instructing the jury that it was entitled to consider
Defendant’s flight as evidence that he was conscious of his own -25- guilt. In support of this contention, Defendant argues that the
record evidence did not support an inference that Defendant fled
for the purpose of avoiding apprehension. We do not find
Defendant’s contention persuasive.
1. Standard of Review
“[Arguments] challenging the trial court’s decisions
regarding jury instructions are reviewed de novo by this Court.”
State v. Osorio, 196 N.C. App. 458, 466, 675 S.E.2d 144, 149
(2009). “‘Under a de novo review, the court considers the
matter anew and freely substitutes its own judgment’ for that of
the lower tribunal.” State v. Williams, 362 N.C. 628, 632-33,
669 S.E.2d 290, 294 (2008) (quoting In re Greens of Pine Glen,
Ltd. P’ship, 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003)).
“[A] trial judge should not give instructions to the jury which
are not supported by the evidence produced at the trial.” State
v. Cameron, 284 N.C. 165, 171, 200 S.E.2d 186, 191 (1973), cert.
denied, 418 U.S. 905, 94 S. Ct. 3195, 41 L.Ed.2d 1153 (1974).
“[A]n error in jury instructions is prejudicial and requires a
new trial only if ‘there is a reasonable possibility that, had
the error in question not been committed, a different result
would have been reached at the trial out of which the appeal
arises.’” State v. Castaneda, 196 N.C. App. 109, 116, 674 -26- S.E.2d 707, 712 (2009) (quoting N.C. Gen. Stat. § 15A–1443(a)
(2007)).
2. Appropriateness of Flight Instruction
“Evidence of a defendant’s flight following the commission
of a crime may properly be considered by a jury as evidence of
guilt or consciousness of guilt.” State v. King, 343 N.C. 29,
38, 468 S.E.2d 232, 238 (1996). However, “a trial court may not
instruct a jury on defendant’s flight unless ‘there is some
evidence in the record reasonably supporting the theory that
defendant fled after commission of the crime charged.’” State
v. Levan, 326 N.C. 155, 164-65, 388 S.E.2d 429, 433-34 (1990)
(quoting State v. Irick, 291 N.C. 480, 494, 231 S.E.2d 833, 842
(1977)). “Mere evidence that defendant left the scene of the
crime is not enough to support an instruction on flight;”
instead, “[t]here must also be some evidence that defendant took
steps to avoid apprehension,” State v. Thompson, 328 N.C. 477,
490, 402 S.E.2d 386, 392 (1991), with the record evidence to be
considered in the light most favorable to the State in making
this determination. See State v. Grooms, 353 N.C. 50, 80, 540
S.E.2d 713, 732 (2000) (holding that “[t]hese facts, taken in
the light most favorable to the State, permit an inference that
defendant had a consciousness of guilt and took steps, albeit -27- unsuccessful, to avoid apprehension”), cert. denied, 534 U.S.
838, 122 S. Ct. 93, 151 L. Ed. 2d 54 (2001).
The present record contains ample evidentiary support for
the trial court’s flight instruction. After the shooting and
robbery, Defendant and his co-defendants left the scene after
seeing the headlights of an approaching vehicle, drove down a
dirt road in order to dispose of certain of their weapons, and
set fire to the Cadillac in which they had been riding.
Defendant and his co-defendants were observed and apprehended
three days later in another municipality. This evidence, when
taken in the light most favorable to the State, is more than
sufficient to justify the delivery of the trial court’s flight
instruction. See State v. Lloyd, 354 N.C. 76, 119, 552 S.E.2d
596, 626 (2001) (holding that the trial court did not err by
delivering a flight instruction given the presence of evidence
tending to show that the defendant left the crime scene
hurriedly in his car without providing medical assistance to the
victim); State v. Reeves, 343 N.C. 111, 113, 468 S.E.2d 53, 55
(1996) (holding that evidence tending to show that the
defendant, after shooting the victim, ran from the scene, got
into a nearby car, and drove away was sufficient to support the
delivery of a flight instruction). The fact that, as Defendant
argues, the destruction of evidence is not equivalent to flight -28- to avoid apprehension or that the record does not indicate that
Defendant personally engaged in the destruction of evidence
would not support a decision to reach a different result given
that the record clearly reflects that Defendant left the area in
which the shooting and robbery was committed and that Defendant
was present at and aware of the steps that were taken to conceal
the involvement of the perpetrators in the commission of these
crimes. As a result, when taken in the light most favorable to
the State, the record contains ample evidence tending to show
that Defendant’s actions following the shooting and robbery did,
in fact, reflect flight undertaken as part of an effort to
“avoid apprehension.” Thompson, 328 N.C. at 490, 402 S.E.2d at
392.
In seeking to persuade us to reach a different result,
Defendant places principal reliance on two prior decisions by
this Court and the Supreme Court. In one of those decisions, we
found that the trial court erred by instructing the jury
concerning the issue of the defendant’s flight in a situation in
which the evidence showed that the defendant left the crime
scene with his accomplices, drove to the home of one of his
accomplices, and later was driven to his girlfriend’s house.
State v. Holland, 161 N.C. App. 326, 330, 588 S.E.2d 32, 36
(2003). In holding that the delivery of a flight instruction -29- was error in light of these facts, this Court held that
“visiting a friend at [his or her] residence is not an act that,
by itself, raises a reasonable inference that defendant was
attempting to avoid apprehension.” Id. Needless to say, the
record before us in this case reveals that Defendant did a great
deal more than merely “visit a friend at [his] residence.”
Instead, Defendant and his co-defendants disposed of the
weapons, burned the car used in the commission of the offense,
and went to another locality.
In the other decision upon which Defendant relies, the
Supreme Court held that the delivery of a flight instruction
constituted error given that the only evidence cited in support
of that instruction was testimony by a law enforcement officer
that he had ridden around the defendant’s neighborhood for
several days in an attempt to locate the defendant without ever
going to his residence or making any inquiry about his
whereabouts. State v. Lee, 287 N.C. 536, 539, 215 S.E.2d 146,
148-49 (1975). The record before us in this case demonstrates
substantially more than that a law enforcement officer
unsuccessfully sought to locate Defendant. Instead, the
evidence that Defendant attempted to flee following the
commission of the shooting and robbery for the purpose of
attempting to avoid apprehension is considerably stronger than -30- the flight-related evidence deemed insufficient in Lee. As a
result, given that the record contains “some evidence . . .
reasonably supporting the theory that defendant fled after
commission of the crime charged,” Levan, 326 N.C. at 164-65, 388
S.E.2d at 434 (quotation marks and citations omitted), the trial
court did not err by instructing the jury concerning the
purposes for which they were entitled to consider evidence of
Defendant’s flight.
III. Conclusion
Thus, for the reasons set forth above, we conclude that
none of Defendant’s challenges to the trial court’s judgments
have merit. As a result, the trial court’s judgments should,
and hereby do, remain undisturbed.
NO PREJUDICIAL ERROR.
Judges McGEE and STEELMAN concur.
Report per Rule 30(e).