State v. Locklear

An unpublished opinion of the North Carolina Court of Appeals does not constitute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

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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

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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.

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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

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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

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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.

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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

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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

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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.

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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

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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

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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

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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,

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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

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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

vest” during the trial.

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.

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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

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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,

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__ 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

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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

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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

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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

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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

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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

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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

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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

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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

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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).