dissenting.
I respectfully dissent from the majority opinion because I believe there were insufficient grounds upon which to order, over defendant’s objection, his shackling at trial. The shackling thus denied defendant due process of law under both the Fourteenth Amendment to the Federal Constitution and Article I, Section 19, of the State Constitution.
Due process requires that persons accused of a crime receive the “fundamental liberty” of a fair and impartial trial, and that such persons be afforded the presumption of innocence. Drope v. Missouri, 420 U.S. 162 (1975). To implement this presumption courts must guard against factors which may “undermine the fairness of the fact-finding process” and thereby dilute “the principle that guilt is to be established by probative evidence and beyond a reasonable doubt_” Estelle v. Williams, 425 U.S. 501, 503 (1976), quoted in State v. Tolley, 290 N.C. 349, 365, 226 S.E. 2d 353, 366 (1976). It follows, then, that the presumption of innocence requires the garb of innocence, for “regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man.” Eaddy v. People, 115 Colo. 488, 492, 174 P. 2d 717, 718 (1946), quoted in State v. Tolley, supra. As recognized by the United States Supreme Court in Illinois v. Allen, 397 U.S. 337, 344 (1970):
“But even to contemplate [binding and gagging a defendant], much less see it, arouses a feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s *618feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” (Emphasis supplied.)
Accordingly, this Court in Tolley held that a criminal defendant is entitled to appear at trial free from shackles except in extraordinary circumstances where such action is necessary to prevent escape, to protect persons in the courtroom, or to maintain order during trial. The trial court in determining whether such extraordinary circumstances do in fact exist may consider various “material circumstances.” State v. Tolley, supra.1
The majority, in upholding the shackling here, notes that defendant was charged with crimes of violence, was 29 years old and in good health, and had recently been convicted on other charges and sentenced to a lengthy prison term; that only one deputy was available to provide for courtroom security; and that there was an outstanding warrant from Maryland charging defendant with escape from a penal institution. I respectfully submit the simple existence of all the factors listed does not justify shackling defendant without some other indication that shackling was in fact necessary to prevent his escape, to protect persons in the courtroom, or to maintain order during trial. In so doing I recognize that the propriety of shackling is originally entrusted to the discretion of the trial court. Although the abuse of discretion standard is inherently flexible, it is not without limits. As noted by this Court in Tolley, “sound judicial discretion means ‘a discretion that is not exercised arbitrarily or wilfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result.’” State v. Tolley, supra, 290 N.C. 349, 367, 226 S.E. 2d 353, 367-68, quoting Langnes v. Green, 282 U.S. 531, 541 (1931). It is my opinion that the trial court here exceeded the limits of sound judicial discretion.
*619There is no indication in the record that defendant at the time of his trial posed a threat to any person in the courtroom, was likely to be unruly or disruptive, or was likely to try to escape. All indications are that he would do none of these things. That defendant is charged with serious crimes, is young and healthy, and has recently been convicted of other serious crimes does not justify the shackles. Although these are among the “material circumstances” which in a proper case may be considered, our courts regularly try young, healthy defendants who have criminal records and who are on trial for serious offenses;. yet we do not shackle them. These trials include, of course, even those defendants who have escaped from penal institutions. That only one deputy was available cannot be seized upon as a justification. The absence of adequate courtroom staff was an administrative problem which the trial court should not have solved at the expense of defendant’s right to a fair trial.2 The most telling circumstance of all is that defendant sat quietly through his uneventful trial on other charges held the previous week and at his prelimary hearing.
It thus appears that the trial court, seeking to solve a shortage of deputies problem, simply decided sua sponte to shackle defendant unnecessarily.3 Neither the state nor any representative of the county, so far as the record reveals, advised the court of feelings of insecurity or any felt need for restraining defendant.
The facts in State v. Tolley, supra, 290 N.C. 349, 226 S.E. 2d 353, the only decision rendered by this Court as to the propriety of shackling and in which we unanimously approved the shackling, are significantly different from those here. In Tolley the sheriff, charged with custody of defendant during trial, expressed the opinion that shackles were necessary. In Tolley defendant tried to escape during the preliminary hearing. Importantly, also in Tolley, defendant’s counsel did not object to the shackling when explicitly *620asked if he wished to do so. Thus, while we noted in Tolley that defendant was charged with serious offenses, and was young and in good physical condition, these “material circumstances” were clearly secondary to the prior escape attempt during the preliminary hearing, the sheriffs request, and the lack of objection by defendant himself, through counsel.
The thrust of Tolley is that while shackling does not always violate a defendant’s right to due process under the law, it is a remedy to be used only in extraordinary situations. The simple existence of several of the “material circumstnces” there mentioned does not automatically justify shackling. Only in the extraordinary event that these circumstances together with other actions by defendant himself or concern expressed by those in charge of his prosecution or custody indicate that shackling is necessary to prevent his escape, to protect persons in the courtroom, or to maintain order during trial, should a remedy so damaging to the trial’s impartiality be used.
Finally, the majority notes that “no showing of prejudice has been presented to us, nor do we perceive any.” This Court, however, has stated that “in the absence of a showing of necessity therefor, compelling the defendant to stand trial while shackled is inherently prejudicial in that it so infringes upon the presumption of innocence that it ‘interferes with a fair and just decision of the question of . . . guilt or innocence.’” (Emphasis supplied.) State v. Tolley, supra, 290 N.C. at 366, 226 S.E. 2d at 367, quoting Blair v. Commonwealth, 171 Ky. 319, 328, 188 S.W. 390, 393 (1916). The state contends that even if the shackling was improper the error was cured by the trial judge’s instruction. My view is that if the shackling was not justified in the first place the error cannot be cured by instructions to the jury. We do a great disservice to the dignity and integrity of our courts when we permit the needless shackling of criminal defendants. I vote for a new trial for defendant at which he will not be shackled unless the circumstances then are such that shackling is required.
Justice COPELAND joins in this dissent.As noted in Tolley: “The ‘material circumstances’ which the trial judge may consider in exercising his sound discretion include, inter alia, the seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past records; 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.” 290 N.C. at 368, 226 S.E. 2d at 368.
The proper solution to this problem would have been for the trial court to have secured other personnel such as state highway patrolmen, if possible; if not, the trial should have been delayed until sufficient personnel could be secured.
The court instructed the jury, in pertinent part, as follows: “One more thing, ladies and gentlemen, I want you people who are on the venire to also listen to this. Some of you may have noticed that the defendant is partially restrained in that he has on what are commonly referred to as shackles or leg irons. The reason for this is that the Sheriff s Department has all of its men over in Dare County and there is only one sheriff who can serve as Bailiff and also act as security officer for the courtroom.”