Campbell v. the State

FOURTH DIVISION
BARNES, P. J.,
RAY and MCMILLIAN, 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.
http://www.gaappeals.us/rules

September 16, 2015

In the Court of Appeals of Georgia
A15A1343. CAMPBELL v. THE STATE.

BARNES, Presiding Judge.

A jury found Henry Leroy Campbell III guilty of riot in a penal institution,

mutiny, and five counts of obstruction of a law enforcement officer. Following the

denial of his motion for new trial, Campbell appeals, contending that the trial court

abused its discretion and denied him a fair trial by requiring him to wear an electronic

security device during the trial. Upon our review, we affirm.

On appeal, we review the evidence in the light most favorable to the jury’s

verdict, and Campbell no longer enjoys a presumption of innocence. Short v. State,

234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or

determine witness credibility, but only determine if the evidence was sufficient for

any rational trier of fact to find the essential elements of the crime beyond a

reasonable doubt. Id.
 So viewed, the evidence shows that a deputy sheriff working at the county jail

was dispensing medication in Cell Block A when Campbell, an inmate, approached

him. Campbell asked the deputy for his name and badge number and said the jailers

were holding him against his will. The deputy asked him some questions to see if he

could help him, but Campbell kept saying the same thing over and over. The deputy

eventually said he would check on things for Campbell and tried to shut the cell block

door, but Campbell stuck his foot in the door and said he was not done talking.

The deputy eventually secured the door and began to move on, but realized that

Campbell was still agitated and was concerned that new employees at the jail might

encounter difficulty handling Campbell if he tried to exit the cell block. The deputy

thus returned to Campbell’s cell block, intending to “defuse and secure him

somewhere else and give him time to cool off a little bit.” Campbell, who was sitting

at a table holding a pencil, refused the deputy’s instructions to step outside the cell

block, where the deputy had intended to handcuff him, so the deputy entered the

block instead. Because Campbell was getting louder and more belligerent, the deputy

tried to place the handcuffs on him so he would not hurt anyone.

Still holding the pencil, Campbell balled up his fists when the deputy tried to

cuff him. The deputy drew his Taser and commanded Campbell to stand next to the

2
wall. Campbell threw down the pencil and made his way to the wall, but turned

toward the deputy with his fists balled. Anticipating that Campbell was going to

charge him, the deputy fired his Taser and the leads struck Campbell on his chest but

did not make him fall, so the deputy moved closer, intending to use the Taser on him

directly to force him to the ground. Before he could do so, Campbell charged him,

pinned his arms in a bear hug, shoved him into a table, and threw him back over

Campbell’s shoulder.

As the deputy crawled toward the door, Campbell struck him on the back of his

head with his fists, then with the deputy’s radio and knocked him back to the ground.

The deputy described it as feeling like he “was hit in the head with a brick.” He tried

to get to his feet, fearing that Campbell was about to kill him, but Campbell kept

hitting him on the head with the radio and knocking him to the ground. The officer

finally “got enough push to lunge for the door” and escaped from the cell block. His

clothes were completely covered in blood from a head wound that required stitches.

The other inmates in the block returned to their individual cells, but Campbell

remained in the common area with the officer’s Taser in his hands and a blanket over

his shoulders. The sergeant called over the intercom system and told Campbell to

empty his hands, but Campbell just fired the Taser into the air. He got into a fighting

3
stance when several officers entered the cell block. The sergeant deployed his Taser,

but Campbell was wearing a blanket that shielded him from the weapon’s effect. He

dropped the blanket and began advancing toward the officers when a deputy struck

him with the leads of his Taser. When Campbell fought off the effects of the Taser

and began to stand, three officers struck him with their hands until they finally

subdued and cuffed him. Campbell was charged with four counts of obstruction of a

law enforcement officer, aggravated assault on a peace officer, mutiny, and riot in a

penal institution. As to the aggravated assault charge, the jury found him guilty of the

lesser included offense of felony obstruction, and also found him guilty of the other

charges.

1. Although Campbell has not challenged the sufficiency of the evidence, the

evidence as outlined above was sufficient to allow a rational trier of fact to find him

guilty beyond a reasonable doubt of mutiny in a penal institution, riot in a penal

institution, and five counts of obstruction of a law enforcement officer. Chynoweth

v. State, 331 Ga. App. 123, 125 (1) (768 SE2d 536) (2015) (evidence that defendant

swung his fist at officer was sufficient to affirm conviction for obstruction and riot

in a penal institution for committing an act in a violent manner); Bierria v. State, 232

Ga. App. 622, 625 (9) (502 SE2d 542) (1998) (evidence that defendant was in lawful

4
custody when he assailed, opposed or resisted an officer of the law with the intent to

cause serious bodily injury was sufficient to affirm conviction for mutiny in a penal

institution).

2. Campbell asserts that the trial court abused its discretion and denied him a

fair trial by ordering that he appear at trial wearing an electronic shock device as a

security measure when “nothing about Mr. Campbell or the circumstances of this case

required the wearing of the shock device.” Campbell also alleges that his

apprehension about the device impeded his ability to participate in his defense,

thereby resulting in a denial of his right to a fair trial. He contends that he should be

granted a new trial “following a hearing dedicated to his in-court behavior and the

proper considerations governing the determination that a defendant must wear a non-

visible electronic shock or stun device during a criminal trial,” citing Weldon v. State,

327 Ga. App. 862 (761 SE2d 421) (2014), affirmed, Weldon v. State, ___ Ga. ___

(Case No. S14G1721, Decided July 13, 2015).

Before striking the jury in this case, the State moved to have the trial court

require Campbell to wear an electronic restraint belt during the trial and called three

witnesses, one to testify about how the device worked and two to testify about other

incidents of violence that arose with Campbell while he was incarcerated. The deputy

5
responsible for courtroom security testified that the electronic restraint belt is a

remote-controlled device that is placed around the subject’s waist, hidden from view,

with the capacity to emit 50,000 volts of electricity for eight seconds. The device

would be monitored by himself or his supervisor, both of whom were trained to use

it, and would be activated only if there was “a physical manifestation by the

individual in an aggressive manner.” If Campbell was “merely verbally disruptive”

or simply stood up, the operator would cause the belt to give a warning tone rather

than emit a shock.

A sheriff’s office booking supervisor testified that Campbell had flooded his

jail cell while he was awaiting trial on these charges, and when the supervisor moved

him to a new cell, Campbell refused to kneel down for his handcuffs to be released.

The supervisor then tried to place Campbell in a restraint chair, but Campbell refused

to do so, and in the struggle he bit the supervisor’s finger so deeply that fat and

muscle were visible in the wound.

Another deputy testified that two days after the biting incident, he opened

Campbell’s cell so Campbell could clean it, and Campbell became “involved in a

verbal altercation with another inmate.” The deputy asked Campbell to return to his

cell multiple times before Campbell finally complied. When the deputy closed

6
Campbell’s cell door, Campbell began cursing at him and threatened to kill him if he

ever caught him out on the street.

After hearing this testimony, the trial court determined that, based on the

evidence presented, it was appropriate to require Campbell to wear the electronic

restraint belt under his clothing and invisible to the jury. The restraining device was

not activated at any time during Campbell’s trial.

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

interruption, disturbance, or hindrance to its proceedings.” See also Nance v. State,

280 Ga. 125, 127 (623 SE2d 470) (2005). Campbell contends that the trial court

abused its discretion in making him wear an electronic restraint belt because, unlike

the defendants in other cases affirming the use of courtroom restraints, he was not on

trial for murder and he had made no violent outbursts, threats to the prosecutor, or

disruption in the courtroom.

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. [The Georgia Supreme Court has] previously held that utilization

7
 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.

Young v. State, 269 Ga. 478 (2) (499 SE2d 60) (1998), overruled in part on other

grounds, Whitehead v. State, 287 Ga. 242, 249 (2) (695 SE2d 255) (2010).

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 device also

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

present at trial.” Weldon v. State, ___ Ga. at ___ (Nahmias, J., concurring specially).

Campbell contends that “[a] criminal defendant should not be distracted and unable

to focus on trial and assisting his attorney because he is afraid for his personal safety

and avoiding physical injury.” He also noted in his recitation of the evidence that

during a break, the trial court asked him to lower his voice to a whisper when he was

talking to his lawyer. Campbell responded, “Yes, sir. ... I don’t want to get

electrocuted.” Other than this comment, Campbell has pointed to no assertions he

made during the trial in which he asserted that wearing the restraint belt had an

adverse effect on him because it prevented him from assisting his attorney.

8
 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.
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.

Weldon v. State, ___ Ga. at ___.

The trial court did not abuse its discretion by ordering Campbell to wear the

restraint belt.

Judgment affirmed. Ray and McMillian, JJ., concur.

9