People v. Rippatoe ( 2011 )

No. 3--09--0983
Opinion filed March 11, 2011
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2011
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 9th Judicial Circuit,
) McDonough County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 06--CF--163
)
DARRELL RIPPATOE, ) Honorable
) Edward R. Danner,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE HOLDRIDGE delivered the judgment of the court, with
opinion.
Presiding Justice Carter and Justice O’Brien concurred in
the judgment and opinion.
________________________________________________________________
OPINION
The defendant, Darrell Rippatoe, appeals from an order of
the circuit court of McDonough County denying his posttrial
claims of ineffective assistance of counsel and denying his
request for appointment of new counsel. This is the second time
that the defendant’s posttrial claim of ineffective assistance of
trial counsel has been brought before this court. We previously
remanded this matter to the circuit court with directions to
conduct an appropriate inquiry into whether new counsel should be
appointed to present the defendant’s claim of ineffective
assistance of trial counsel. People v. Rippatoe, No. 3--07--0646
(2009) (unpublished order under Supreme Court Rule 23).
FACTS
A jury found the defendant guilty of home invasion (720 ILCS
5/12--11(a)(6) (West 2006)) and resisting or obstructing a peace
officer (720 ILCS 5/31--1(a) (West 2006)). At the sentencing
hearing, the defendant raised allegations of ineffective
assistance of counsel. The trial judge, Judge Larry Heiser, did
not address the defendant’s claims of ineffective assistance of
trial counsel. The court sentenced the defendant to 6½ years for
home invasion and 364 days for resisting or obstructing a peace
officer, the sentences to run concurrently.
In a pro se motion filed after sentencing, the defendant
again raised allegations of ineffective assistance of counsel,
asking the trial court to appoint another attorney to represent
him. By this time, Judge Heiser had retired and Judge Edward
Danner presided over defendant’s motion. Judge Danner ruled
that, based upon his review of the transcript of the prior
proceedings, there was no merit to the defendant’s ineffective
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assistance claims. The trial court then summarily denied the
request to appoint new counsel.
The defendant appealed, maintaining that the trial court had
failed to conduct an adequate inquiry into the factual basis of
his pro se ineffective assistance claim. See People v. Krankel,
102 Ill. 2d 181, 188 (1984). This court reversed and remanded
the matter to the trial court with directions to conduct an
inquiry into the factual basis of the defendant’s pro se
posttrial claims in order to determine whether new counsel should
be appointed to investigate those claims. This court held that
the defendant’s claims of ineffective assistance could not be
adequately addressed by merely reviewing the transcripts of the
trial.
Following remand from this court, the defendant was
transported from a Department of Corrections facility to the
McDonough County courthouse where he was brought before Judge
Danner with his legs shackled together and his arms shackled to a
waist belt. When asked to raise his right hand to be sworn, the
defendant exhibited extreme difficulty in doing so due to the
presence of the shackles. After some effort to overcome the
weight and encumbrance of the shackles, the defendant was able to
raise his right hand sufficiently to swear an oath of truth.
3
After the defendant successfully raised his right hand, there was
no further mention of the shackles, which remained on the
defendant throughout the hearing.
The defendant testified that he told his defense counsel
that an individual named Floyd Robinson could testify that the
defendant had asked him to watch his two-year-old son, Ezekiel,
while the defendant went to the alleged victim’s house on the day
in question. This testimony would have contradicted the
testimony of the victim and the victim’s adult son that the
defendant had brought Ezekiel with him to the victim’s house.
The defendant alleged that counsel did not call Robinson to
testify because of his race. The defendant also testified that
his counsel had failed to ask a number of questions of the
prosecution witnesses that he had requested be asked.
Attorney Douglas Miller, defendant’s trial counsel, was
called by the court to give testimony regarding his
representation of the defendant at trial. Miller testified that
the defendant had given him the name of Floyd Robinson as a
potential witness. Miller thereafter arranged for Robinson to
come to the courthouse during the defendant’s trial. Outside the
courtroom, Miller asked Robertson if, on the day in question, the
defendant had taken Ezekiel to Robinson’s house so that Robinson
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could watch the child. Robinson told Miller that he could not be
sure that the defendant had gone to the victim’s house while he
was watching the child or if the defendant had picked the child
up before going to see the victim. Robinson claimed that he
watched the child for approximately an hour that day, but he
could not pinpoint the time of day when he was watching the
child. Miller recalled that both the victim and her son
testified that Ezekiel was with the defendant when he invaded the
victim’s home and attempted to sexually assault her.
Although Miller indicated that he had no concerns about
Robinson’s credibility as a witness, he decided not to call
Robinson to testify because he did not believe that Robinson’s
testimony would support a claim that the State’s witnesses were
not truthful when they testified that Ezekiel was with the
defendant. In view of the fact that Robinson could not establish
what time of day he was watching the child, Miller surmised that
it was possible the defendant had picked up the child prior to
going to the victim’s house.
Miller also testified that he decided against calling
Robinson as a witness regarding Ezekiel because he believed there
was a strategic advantage to the defendant in arguing that
Ezekiel’s presence would have made it highly unlikely that the
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defendant would invade the victim’s home and attempt to sexually
assault her with his two-year-old son in tow. Miller testified
that, as he recalled, he had in fact made this argument to the
jury. Miller further testified that he did not consider
Robinson’s race in the decision not to call him as a defense
witness.
Miller also testified that he did not use the questions that
the defendant had asked him to pose to prosecution witnesses
because they were argumentative and unnecessary to the defense.
Miller further testified that he had been an assistant public
defender for approximately 21 years and had tried 40 to 50 jury
trials.
After Miller testified, the defendant was allowed to
question Miller. The defendant asked two questions of Miller,
both of which addressed a conversation between the defendant and
Miller regarding Robinson’s potential testimony.
At the conclusion of the testimony, the trial court sought
argument from the Assistant State’s Attorney, from Miller, who
made note of the difficulty in arguing his own ineffectiveness,
and from the defendant, who presented a brief argument on his own
behalf. The trial court then ruled that the defendant’s claims
of ineffective assistance of counsel did not warrant appointment
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of new counsel. The court determined, based upon the testimony
of the defendant and Miller, that there was no indication that
Miller’s performance had been deficient. The court found that
the substance of Robinson’s proposed testimony would not have
conclusively indicated that, at the time of the alleged home
invasion, Ezekiel was with Robinson and not, as the victim had
testified, with the defendant. The court also found there was a
strategic reason not to call Robinson as a witness, noting that
it preserved Miller’s ability to argue that the defendant would
not have conducted a home invasion and sexual assault with his
child present. Moreover, the court found no support for the
defendant’s claim that Miller refused to call Robinson as a
witness because of his race.
At one point in the proceedings, the trial judge commented
that, in his previous personal experience with attorney Miller,
the judge had never known Miller to be deficient in his
performance. The judge then recalled a case where Miller’s
representation of a particular defendant had, in the opinion of
Judge Danner, effectively gotten a not guilty verdict for a
defendant who was probably guilty. Specifically, Judge Danner
observed as follows:
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"The court has, in over 30 years, has had
[sic] experience of seeing wide ranges of
ability of various counsel. This court did
sit here in 2007 and had [sic] opportunity
from time to time and occasion to occasion to
observe Mr. Miller conduct court on behalf of
his clients. The court’s previous experience
with Mr. Miller has been that he customarily
was acquainted with his cases. Did legal
research. Asked questions. Actually, I
remember one case Mr. Miller conducted in
front of me that I knew, as well as I was
sitting on the bench, there had been a fellow
that walked out of the door with a couple of
packs of tobacco, but it could not be shown
with the identification marks and I found the
defendant not guilty, who was a habitual
shoplifter over here at McDonough County, but
Mr. Miller had done some excellent research
talking about the act with specificity the
items coming from a particular establishment.
This court found Mr. Miller to be a
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respectable member of the Bar, and officer of
the Court, and to have always been candid
with this court."
The trial judge then announced his finding that the
defendant had failed to establish the need to appoint new counsel
to further investigate the defendant’s ineffective assistance of
counsel claims.
ANALYSIS
On appeal, the defendant raises two claims of reversible
error by the trial court: (1) permitting him to be in shackles
throughout the hearing on his posttrial claim of ineffective
assistance of counsel; and (2) referring to defense counsel’s
performance on other matters before the court in ruling that the
defendant’s allegations of ineffective assistance of counsel were
insufficient to require appointment of new counsel.
As a preliminary matter, we note that neither of these two
allegations of error was raised by objection during the hearing.
Ordinarily, an issue is forfeited on appeal if it was not raised
in the trial court through both a contemporaneous objection and a
written motion. People v. Enoch, 122 Ill. 2d 176 (1988); People
v. Allen, 222 Ill. 2d 340, 350-51 (2006). In order to overcome a
9
claim of forfeiture, we must determine whether the alleged errors
can be reviewed under the so-called "plain-error doctrine."
People v. Hillier, 237 Ill. 2d 539, 542 (2010). This doctrine
proceeds in two steps. First, we must determine whether a clear
and obvious error occurred. People v. Piatkowski, 225 Ill. 2d
551, 565 (2007). If we find that an error occurred, we must then
determine whether the error was reversible. There are two ways
to determine whether the error constituted reversible error.
Reversible error occurs "when (1) a clear or obvious error
occurred and the evidence is so closely balanced that the error
alone threatened to tip the scales of justice against the
defendant, regardless of the seriousness of the error, or (2) a
clear or obvious error occurred and that error is so serious that
it affected the fairness of the defendant’s trial and challenged
the integrity of the judicial process, regardless of the
closeness of the evidence." Piatkowski, 225 Ill. 2d at 565. In
the first instance, the defendant must show that he was
prejudiced by the error, i.e., the evidence was so closely
balanced that the error threatened to ? Piatkowski, 225 Ill. 2d at 565 (quoting
People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). In the second
instance, however, the defendant must show that the error was so
10
serious that it affected the fairness and integrity of the
proceeding "regardless of the strength of the evidence."
(Internal quotation marks omitted.)(Emphasis omitted.) Id. at
565.
1. Shackling
It is well established that shackling a defendant in a
criminal case is to be avoided unless absolutely necessary
because such a drastic measure: (1) tends to prejudice the jury
against the defendant, by negating the presumption of innocence;
(2) restricts the defendant’s ability to assist his counsel
during trial; and (3) offends the dignity of the judicial
process. People v. Boose, 66 Ill. 2d 261, 265 (1977); People v.
Urdiales, 225 Ill. 2d 354, 415 (2007). Even in a posttrial
proceeding, where there is no jury, any unnecessary restraint of
a defendant is impermissible because it demeans both the
defendant and the judicial process. People v. Allen, 222 Ill. 2d
340, 346 (2006). As such, it is error for a court to order or
permit a defendant to be shackled at any point in a criminal
proceeding unless the court has conducted a hearing in which it
determines a manifest need for such restraints. Boose, 66 Ill.
2d at 265-66; Allen, 222 Ill. 2d at 367. There are several
specific factors that must be considered by the trial court to
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determine whether there is a manifest need for restraining a
defendant during a court proceeding. Boose, 66 Ill. 2d at 266-
67. Failure by the trial court to consider the Boose factors is
clear and obvious error. Urdiales, 225 Ill. 2d at 415-16; Boose,
66 Ill. 2d at 267.
Here, the trial court erred in failing to conduct an inquiry
into the need for the defendant to be shackled during the hearing
on his posttrial motion. Having determined that clear and
obvious error did, in fact, occur, we must determine whether the
error constituted reversible error under the plain-error
doctrine. Proceeding to the first test to determine whether a
clear and obvious error is reversible, we note that the defendant
has not argued that the evidence adduced at the hearing on his
posttrial motion was closely balanced. Therefore, the first test
does not apply. The defendant must, therefore, establish that
his being shackled during the hearing on his pro se motion was so
serious in nature as to have affected the fairness of the
proceedings and challenged the integrity of the judicial process.
The burden of persuasion on the question lies with the defendant.
Piatkowski, 225 Ill. 2d at 565 (citing People v. Herron, 215 Ill.
2d 167, 187 (2005)).
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The defendant argues that his participation at the hearing
on his pro se motion while shackled, including giving testimony,
questioning a witness and addressing the court in argument, was
fundamentally unfair and clearly demeaned the dignity of the
judicial process. The defendant points to his extreme difficulty
in raising his right hand to take the oath of truth as a vivid
example of how unfair and demeaning to the dignity of the
proceedings the shackles were. He maintains that questioning
witnesses, giving testimony, and presenting argument, all while
his legs were shackled together and his arms were shackled to his
waist, made a mockery of the proceedings. We agree.
The State maintains, however, that there is no indication
that the trial judge was negatively influenced by the fact that
the defendant was shackled. People v. Jackson, 205 Ill. 2d 247
(2001) (the law presumes a judge is impartial, even under strong
provocation). Thus, the State further maintains, the defendant
has failed to establish that the fairness of the proceedings was
impaired or the integrity of the judicial process was impaired.
We disagree. There can be no doubt that shackles impose physical
burdens, pains, and restraints that tend to confuse and embarrass
a defendant, burden his mental faculties and thereby materially
13
abridge and prejudicially affect his constitutional rights. Deck
v. Missouri, 544 U.S. 622, 631 (2005).
Where a defendant is forced to appear pro se, take an oath,
testify, question witnesses, and present his arguments to the
court all while shackled, without any consideration by the trial
judge of the necessity for the shackles, the integrity of the
judicial process is greatly demeaned. There can be no doubt that
the defendant’s ability to act on his own behalf is severely
diminished. Moreover, there can be no doubt that the integrity
and dignity of the judicial proceedings was demeaned where one of
the participants had to conduct himself throughout the hearing
while bound hand and feet for no apparent reason and without even
an inquiry into a need to be restrained. We find, therefore,
that it was plain and reversible error for the trial judge to
require the defendant to participate in these proceedings while
in shackles. The matter is reversed and remanded to the circuit
court for further proceedings wherein the trial court will make a
proper determination regarding the need to have the defendant
participate in a hearing on his pro se motion while shackled, and
if there is no manifest reason to do so, the defendant should be
allowed to proceed in a manner that will not adversely affect the
integrity of the judicial process.
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2. Off-record Findings
Although our finding that the trial court committed
reversible error in allowing the hearing to proceed while the
defendant was shackled is sufficient to warrant remand for a new
hearing, we find it necessary to address the defendant’s argument
that the trial judge erred in considering his off-record
knowledge of defense counsel’s performance in other cases in
deciding the defendant’s claim of ineffective assistance of
counsel. Again, we note that the defendant forfeited the issue
on appeal and we cannot review the matter unless it is deemed to
be plain error. Hillier, 237 Ill. 2d at 544-45.
We find that the trial court’s reliance upon its own
observations of Miller’s performance in other matters was clear
error. See People v. Steidl, 177 Ill. 2d 239, 266 (1997)
("[d]eliberations of the court must necessarily be limited to the
record before it"); People v. Dameron, 196 Ill. 2d 156, 171-72
(2001)(? 24 Ill. 2d 350, 354
(1962)).
15
Of particular relevance in the instant matter is Steidl,
where our supreme court found a trial court engaged in reversible
error when it commented as follows:
? Steidl, 177 Ill. 2d at
265.
16
We cannot help but note the striking similarity between
Judge Danner’s comments in the instant matter and the comments
which constituted reversible error in Steidl.
Having found that the trial judge committed error in
commenting on his personal knowledge of Miller’s performance in
other matters before him, we must still determine whether the
error constituted reversible error. We find that the defendant
has not established that the trial judge’s error affected the
fairness of the proceedings or challenged the integrity of the
judicial process. Although a judge errs in considering facts
outside the record, that error is harmless when a reviewing court
can safely conclude that consideration of the facts outside the
record did not affect the result. People v. Jennings, 364 Ill.
App. 3d 473 (2005). Here, unlike in Steidl, where no evidentiary
hearing took place, we may conclude that Judge Danner’s musings
and reminiscences about Miller’s performance on other cases did
not affect his ruling.
In Steidl, unlike in the instant matter, there was no
evidentiary hearing, making the judge’s personal knowledge of
trial counsel’s performance the only basis on the record for its
determination that counsel provided competent representation.
Steidl, 177 Ill. 2d at 265-66. Here, the record includes the
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testimony of both the defendant and his trial counsel. On
review, we may determine from the complete record, absent Judge
Danner’s inappropriate musings, that Miller provided competent
representation. The record supports a finding that the decision
not to call Robinson as a witness was a matter of trial strategy.
While it was clear and obvious error for the trial judge to
consider his personal knowledge of Miller’s performance on other
matters, the defendant has failed to establish that he was
prejudiced by the trial judge’s error.
CONCLUSION
The trial court erred at the hearing on the defendant’s
posttrial motion, both by allowing the defendant to remain
shackled throughout the proceeding without a determination that
shackles were necessary and by commenting upon the court’s
personal knowledge of defense counsel’s performance in other
matters before the court. While both actions by the trial court
were erroneous, the defendant established reversible error only
on the shackling issue. The matter is remanded to the circuit
court for further proceedings wherein the trial court will make a
proper determination regarding the need to have the defendant
participate in a hearing on his pro se motion while shackled. If
there is no manifest reason for the defendant to be shackled, a
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new hearing shall be held on the defendant’s claim of ineffective
assistance wherein the trial court is instructed, once again, to
conduct an inquiry into the factual basis of the defendant’s pro
se posttrial claims in order to determine whether new counsel
should be appointed to investigate those claims.
Reversed and remanded with directions.
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