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State v. Peek5/3/2000
lice officers, as detailed in the search warrant affidavit, in a case similar to this, the court concluded:
The affidavit given to support the issuance of the search warrant meets the requirements of the United States Constitution, the Tennessee Constitution, and the common law rules created by the appellate courts of this state. The affidavit recites in minuscule detail the nature of the crimes the appellant is alleged to have committed, the steps taken during the course of the investigation, and the information received from the independent witnesses having knowledge of the facts. The affidavit was clearly sufficient to justify the issuance of the search warrant.
956 S.W.2d at 13.
The affidavit in the instant case sets out in detail the nature of the crimes committed against both victims that the defendant is alleged to have committed; the steps taken during the investigation; information received from independent witnesses having direct knowledge of facts and events; and facts supporting an inference that the crimes were committed by a single perpetrator. Therefore, we hold that the challenged affidavit is sufficient to support a finding by the magistrate of probable cause to collect samples of the defendant's blood, saliva, and hair.
III. USE OF SHACKLES
In his third issue, the defendant argues that he was prejudiced by the requirement of the trial court that he wear leg shackles during the jury trial over the timely objection of his counsel.
The United States Supreme Court noted that " ne of the essential due process safeguards that attends the accused at his trial is the benefit of the presumption of innocence. . . ." See Estelle v. Williams, 425 U.S. 501, 517, 96 S.Ct. 1691, 1699, 48 L.Ed.2d 126 (1976) (stating that identifiable prison garb "surely tends to brand [the accused] in the eyes of the jurors with an unmistakable mark of guilt"). "The sight of shackles and gags might have a significant effect on the jury's feelings about the defendant," and they should be used as a last resort. Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 1061, 25 L.Ed.2d 353 (1970). " courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt." Estelle, 425 U.S. at 503, 96 S. Ct. at 1693.
The decision to shackle a defendant lies within the discretion of the trial court; the test on review is abuse of discretion. See Kennedy v. Cardwell, 487 F.2d 101, 107 (6th Cir. 1973). " nly upon a clear showing of necessity should shackles ever be employed." Id. at 111. In order for this Court to meaningfully review the trial court's decision to shackle the defendant, the trial court's reasons must be stated on the record. See id. at 107. In Kennedy v. Cardwell, the Sixth Circuit Court of Appeals suggested that holding a hearing is preferred practice. "In this way factual disputes may be resolved and a meaningful record preserved for an appeal. . . ." See id. at 110. Three procedural safeguards to the employment of shackling were set out by this court as follows:
(1) That the trial court should enter into the record of the case the reasons for the use of restraints, preferably in conjunction with a hearing;
(2) That the record should show that the use of restraints is reasonably necessary and the least drastic security measure;
(3) That adequate jury instructions should be given stating that the shackling should in no way affect the jury's determination of guilt or innocence or their assessment of punishment.
See Willocks v. State, 546 S.W.2d 819, 822 (Tenn. Crim. App. 1976) (relying on the American Bar
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