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State v. Mollman12/23/2003
nd from court. During jury voir dire, the trial court took a recess. As jurors and potential jurors were leaving the room, the deputy approached Defendant, told him that the deputy needed to use the restroom and required Defendant to accompany him. The deputy and Defendant left the courtroom together. The defense moved for a mistrial on the basis that some potential jurors saw the interaction between the deputy and Defendant and were presumably prejudiced by this "indicia of incarceration." The trial court heard the motion and held:
Well, the court is going to deny the motion for a mistrial. The jurors were filing out of the courtroom. There were just a couple of jurors that even saw the deputy approach from the side here.
Mr. Mollman, the court certainly has no reason to believe there was any conversation overheard by any prospective juror and the court believes that in fact no prejudice has been created here in the minds of any potential juror and that there [are] no just grounds for a mistrial.
Mollman asserts the holding was error because the deputy's action made Defendant's "captive status" apparent to the jurors and therefore prejudiced his right to a fair trial.
. Mollman relies on cases which hold that, as a general rule, a criminal defendant has the right to appear before a jury "free from shackles or other physical restraints." State v. Weatherford, 416 NW2d 47, 52 (SD 1987) (additional citations omitted). Mollman was not dressed in prison garb, nor was he in shackles or other physical restraints. There is no evidence in the record, and Mollman does not argue that the deputy physically guided him out of the courtroom or even touched him. Mollman argues that he was nonetheless prejudiced because the potential jurors could have been led to believe that he was in custody.
. We review the trial court's denial of a mistrial under the abuse of discretion standard. State v. Anderson, 2000 SD 45, , 608 NW2d 644, 655. In order to justify a mistrial, the defendant must make an actual showing of prejudice. For purposes of determining whether there are grounds for a mistrial, there must be error "which, in all probability, produced some effect upon the jury's verdict and is harmful to the substantial rights of the party assigning it." Id. (citations omitted).
. Courts must guard against the prejudice that can arise when a defendant is compelled to appear before the jury either physically restrained or in prison garb. However, the defendant's right to be free from restraint is not absolute. The trial court must balance the interest of the court in maintaining security of the court officers, defendant and jury against the interest of the defendant in appearing free of physical restraint. Weatherford, 416 NW2d at 53. Mollman was not compelled to appear before the jury with any physical restraints. However, a defendant is presumed innocent and this presumption can be effective only if "courts guard against practices which unnecessarily mark the defendant as a dangerous character or suggest that his guilt is a foregone conclusion." Weatherford, 416 NW2d at 53. Therefore, the use of physical restraints or prison garb are not the only instances where an indication to the jury that a defendant is in custody may lead to prejudice. Defendant urges the Court to hold that inadvertently allowing potential jurors to see the deputy escort Defendant out of the courtroom was per se prejudicial.
. We have held that when a courtroom arrangement has been challenged as being inherently prejudicial, the question is "not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether 'an unacceptable risk is presented of impermissi
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