King, J.c.c., Temporarily Assigned.
Defendant is on trial on charges of murder, arson and kidnapping. On the sixth day of trial, while being transported from the courtroom on the second floor to the county jail on the sixth floor by two unarmed court attendants, the handcuffed defendant was exposed to three or more jurors for 15 or 20 seconds while an elevator carrying the jurors opened unexpectedly. No leg shackles were used. Defendant has been neatly groomed, properly deported, and well dressed throughout the trial, as were the other two codefendants. No physical or verbal characterization of defendant as dangerous or obstructive has arisen during the trial. All reasonable precautions to prevent such an incident had been followed. The episode was entirely accidental, and apparently resulted when a mechanical defect disabled the security elevator in which the defendant was usually transported, which was not used by the jury or public.
The issue here is whether the fact that some jurors may have seen defendant in handcuffs for a few seconds was so inherently prejudicial as to deny him his constitutional right to a fair trial and require the court to grant his motion for a mistrial. The exact question has not been decided in this state. A somewhat comparable situation arose in State v. Sykes, 93 N.J. Super. 90 (App. Div. 1966), where defendant was seen by jurors in handcuffs as he approached the courtroom just prior to summations. The judge asked defendant if he desired to move for a mistrial. After consulting with his attorney, defendant instead was permitted to retake the stand and testify with respect to his present incarceration. It was also agreed that suitable cautionary instructions would be given to the jury. On post-conviction relief the Appellate Division found no fault with this procedure. The question presented on appeal was whether the trial court should have directed a mistrial on its own motion. Answering that question in the negative, the Appellate Division left
open the precise consideration presented here: "Whether or not the court would have granted a mistrial had one been requested, we cannot know." 93 N.J. Super. at 94.
A motion for mistrial is addressed to the sound discretion of the trial court, but the power to grant such motion should be exercised with great caution. Wright v. Bernstein, 23 N.J. 284 (1957). The exercise of judicial discretion in ruling on the motion involves an appraisal by the trial court of the probable effect of the objectionable incident on a fair trial. Runnacles v. Doddrell, 59 N.J. Super. 363 (App. Div. 1960). Such an appraisal "depend[s] very largely on the 'feel' of the case which the trial judge has at the time," Greenberg v. Stanley, 30 N.J. 485, 502 (1959), and the trial court's determination will not be altered on appeal unless it is strikingly clear that the parties could not have had a fair trial under the circumstances. Id.
It is well established that under ordinary circumstances a defendant's freedom from handcuffs, shackles or manacles is an important component of a fair and impartial trial. State v. Roberts, 86 N.J. Super. 159 (App. Div. 1965); Way v. United States, 285 F. 2d 253 (10 Cir. 1960); United States v. Roustio, 455 F. 2d 366 (7 Cir. 1972). This procedure has been historically followed in order to avoid a prejudice in the minds of the jury against the accused as being a dangerous man, as well as to allow the accused the free and calm use of his facilities. State v. Roberts, supra; Kennedy v. Cardwell, 487 F. 2d 101 (6 Cir. 1973); 21 Am. Jur. 2d, Criminal Law, § 240 at 276.
Defendant's right to be free of shackles during trial need not be extended to the right to be free of shackles while being taken back and forth between the courthouse and the jail. Commonwealth v. Carter, 219 Pa. Super. 280, 281 A.2d 75 (Super. Ct. 1971); Moffett v. State, 291 Ala. 382, 281 So. 2d 630 (Sup. Ct. 1973); People v. Panko, 34 Mich. App. 297, 191 N.W. 2d 75 (App. Ct. 1971). It is within the sound discretion of an officer charged with the custody of a person to place handcuffs or shackles on him to
prevent escape and to protect public safety while the prisoner is being transported. State v. Moore, 257 S.C. 147, 184 S.E. 2d 546 (Sup. Ct. 1971). In State v. Warriner, 506 S.W. 2d 103 (Mo. Ct. App. 1974), defendant was removed from the courtroom at the end of the first day of trial in handcuffs and was viewed by the jury outside the courtroom for two or three minutes. Quoting from United States v. Leach, 429 F. 2d 956, 962 (8 Cir. 1970), the court held (at 104), "It is a normal and regular as well as a highly desirable and necessary practice to handcuff prisoners when they are being taken from one place to another, and the jury is aware of this." Defendant's motion for mistrial was denied.
Further guidance in this area is found in the A.B.A. Project on Standards for Criminal Justice, Standards Relating to Trial by Jury (tentative draft, 1968) (hereinafter cited as Standards):
4.1 Custody and restraint of defendants and witnesses.
(a) During trial the defendant should be seated where he can effectively consult with his counsel and can ...