People v. Barney ( 2006 )

NO. 4-04-0217 Filed: 2/10/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
CRAIG BARNEY, ) No. 03CF1925
Defendant-Appellant. )
) Honorable
) Michael Q. Jones,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In January 2004, a jury convicted defendant, Craig
Barney, of obstructing justice (720 ILCS 5/31-4(a) (West 2002)).
In February 2004, the trial court sentenced defendant to a
three-year prison term. During his trial, defendant was
restrained by leg irons. Defendant did not object to the
shackling. Despite his lack of objection, defendant argues on
appeal his shackling was plain error. We disagree and affirm.
I. BACKGROUND
At trial, the State presented the testimony of two
Urbana police officers, Matthew Quinley and David Smysor.
Quinley testified he was dispatched to the residence of Charisma
Johnson to arrest defendant on an outstanding warrant. Smysor
was similarly dispatched. After they arrived at Johnson's
residence, Smysor spoke with Johnson while Quinley went upstairs
to find defendant. Quinley found defendant, who was packing to
leave, in an upstairs bedroom.
Quinley informed defendant he was under arrest on the
outstanding warrant and took defendant into custody. As part of
the arrest process, Quinley conducted a routine search. Smysor
was on defendant's left side, while Quinley was on his right
side. Quinley searched the right side of defendant. In the
watch pocket of defendant's pants, Quinley found two small,
clear, tied plastic bags. Inside each bag was "a white chunky
substance." Quinley believed the product was crack cocaine
because it resembled crack cocaine both in substance and in its
packaging. Quinley laid the plastic bags on the bed, along with
two sets of keys and two lighters he found on defendant's person.
Quinley testified Smysor next searched defendant's left
side. When Smysor completed his search, defendant buckled his
knees and fell forward onto the top of the bed. Defendant then
inhaled the two bags. Quinley tried to open his mouth, while
Smysor "applied a pressure point to him." Quinley and Smysor
yelled at defendant to spit out the bags. Defendant did not
comply. When defendant did open his mouth, Quinley found noth-
ing. Defendant said, "It is gone." Defendant later told Quinley
the substance was soap and his attorney would have the charges
dropped by the next morning. The officers searched the room and
did not find the Baggies.
On cross-examination, Quinley testified he believed
Johnson was downstairs when the arrest and search occurred. The
officers did not take defendant to a hospital or make any efforts
to pump his stomach or vomit.
Smysor's testimony corroborated Quinley's regarding the
search and defendant's ingestion of the Baggies. Smysor testi-
fied, however, Johnson was in the hallway outside the bedroom
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door during the arrest. Johnson was not close to defendant or
the officers.
At the close of the State's evidence, and after a lunch
recess, the trial court admonished defendant regarding his right
to decide whether to testify. Then the following colloquy
occurred regarding the leg irons:
"THE COURT: Okay. I think because of
the unique situation with the leg irons, we
need to determine whether or not he wishes to
testify. [Defense counsel], is this a deci-
sion that you and your client still aren't in
a position to make until you evaluate the
testimony of the other witness, or is it one
you're in a position to make now?
[DEFENSE COUNSEL]: I believe we can make
it now, if I may have just a moment. Judge,
we are in a position to decide, and he does
not intend to testify at this time.
THE COURT: Okay. That is a decision
that you have made and it is your choice; is
that correct, Mr. Barney?
DEFENDANT: That is correct.
THE COURT: Very good, sir. Now counsel,
is there any reason then that we can't go
ahead right now. It is not visible, is it,
to the jurors, his leg irons there?
[PROSECUTOR]: It is visible to me.
OFFICER: It is tucked in his shoe and
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his pant leg is over it.
THE COURT: I'm going to get off the
bench for a second. [Defense counsel], to
satisfy yourself, come on over here but I
can't see it.
[DEFENSE COUNSEL]: I suppose I really
should. Thank you. I really can't see any-
thing obvious.
THE COURT: Okay. Looks to me then there
is no prejudice to the defendant if we just
proceed with the trial at this time. So is
there anything else either of you wish to
place on the record?
[DEFENSE COUNSEL]: No."
Defendant presented the testimony of one witness,
Charisma Johnson. Johnson testified defendant was her boyfriend
until the day of his arrest. From the doorway, Johnson observed
part of the search of defendant. During the search of defen-
dant's left side, one of the officers was attempting to keep her
out of the room. Johnson could see the bed clearly from where
she stood. On the bed were some objects, including money, a
lighter, cigarettes, and candy wrappers, taken from defendant's
pockets. None of the objects were bags of crack cocaine.
Johnson did not see defendant fall on the bed. She also did not
see the officers search the room.
On cross-examination, Johnson admitted the bedding had
wrinkles because the bed had not been made. She did not see two
sets of keys or two lighters on the bed. Johnson testified all
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she saw the police remove from defendant was money. The officer
said, "This must be drug money." Johnson responded the money was
hers. Johnson did not see an officer search defendant's right
side.
The jury found defendant guilty of obstructing justice.
The trial court later sentenced defendant as stated.
This appeal followed.
II. ANALYSIS
The shackling of defendants during trial should be
avoided. See People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303(1977). Restraining a defendant by shackling tends to prejudice
the jury, limits a defendant's ability to aid counsel in his
defense, and "offends the dignity of the judicial process."
Boose, 66 Ill. 2d at 265, 362 N.E.2d at 305.
Though disfavored, shackling is permissible in certain
circumstances. A court may order a defendant shackled when it
has reason to believe (1) the defendant may attempt to escape,
(2) the defendant may pose a danger to individuals in the court-
room, or (3) shackling is necessary to maintain order. Boose, 66
Ill. 2d at 266, 362 N.E.2d at 305. Before such an order may be
entered, the court must hold a hearing on this issue outside the
presence of the jury. During this hearing, the court shall give
defense counsel the opportunity to argue why defendant should not
be shackled; and the court shall state, for the record, the
reasons for the shackling. Boose, 66 Ill. 2d at 266, 362 N.E.2d
at 305. In this case, no Boose hearing was held and no reasons
for the shackling were set forth in the record.
Defendant, however, did not object to the leg shackling
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at trial or in a posttrial motion. Because he did not object, he
has forfeited our review of the error. See People v. Beard, 356
Ill. App. 3d 236, 241, 825 N.E.2d 353, 359 (2005); see also
People v. Strickland, No. 4-04-0218 (February 10, 2006), ___ Ill.
App. 3d ___, ___, ___ N.E.2d ___, ___.
Defendant urges this court to consider his argument
under the plain-error doctrine. Defendant argues his shackling
without a Boose hearing constitutes plain error. Defendant
relies on the Third District decision, People v. Allen, 354 Ill.
App. 3d 442, 443, 446, 821 N.E.2d 335, 337, 339 (2004), appeal
allowed, 214 Ill. 2d 537, 830 N.E.2d 4 (2005) (No. 99977), which
held the use of an electronic security belt as a restraining
device without a Boose hearing was plain error.
The State disagrees and contends defendant has not
shown plain error. In support, the State relies on a Fifth
District decision, People v. Crutchfield, 353 Ill. App. 3d 1014,
1021-22, 820 N.E.2d 507, 514-15 (2004), in which the court found
no plain error in the use of a stun belt during trial because the
defendant could not show he was prejudiced.
Under the plain-error doctrine, a court of review may
consider issues that were otherwise forfeited due to the failure
to object at trial or in a posttrial motion. Before this court
may invoke the doctrine and find plain error, we must find the
evidence at trial closely balanced or the error was of such
magnitude that the defendant was denied a substantial right and a
fair trial. See People v. Armstrong, 183 Ill. 2d 130, 151, 700
N.E.2d 960, 969 (1998).
We have not yet considered the issue of whether shack-
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ling, absent a Boose hearing, constitutes plain error. We have
considered, in People v. Love, 327 Ill. App. 3d 313, 317-18, 763
N.E.2d 829, 833 (2002), whether the use of a mask during trial
amounted to plain error. However, we did not reach the question
of whether the error was of sufficient magnitude to constitute
plain error because we found no error in the court's order to
mask the accused. See Love, 327 Ill. App. 3d at 318-19, 763
N.E.2d at 833-34.
The Third and Fifth District Appellate Courts have
considered the issue and reached opposite conclusions. The Third
District's finding that shackling absent a Boose hearing always
equals plain error finds its roots in People v. Doss, 347 Ill.
App. 3d 418, 807 N.E.2d 697 (2004). In Doss, as here, the
defendant was required to wear leg shackles during his trial, he
did not object to such shackling, and the court did not believe
the jury could see the shackles. See Doss, 347 Ill. App. 3d at
427-28, 807 N.E.2d at 704-05. In considering the defendant's
claim, the Doss court emphasized the presumption of innocence, as
well as the defendant's right to stand trial, absent certain
circumstances, "with the appearance, dignity[,] and self-respect
of an innocent and free person." Doss, 347 Ill. App. 3d at 427,
807 N.E.2d at 704. The court concluded shackling amounted to
plain error because defendant was deprived of a fair trial.
Doss, 347 Ill. App. 3d at 428, 807 N.E.2d at 705. Upon reaching
this conclusion, the Doss court emphasized the right to appear
innocent and free was particularly significant in its case
because "the defense theory [was] one of mistaken or inaccurate
identity." Doss, 347 Ill. App. 3d at 428, 807 N.E.2d at 705.
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After Doss, the Third District decided Allen, the case
upon which defendant relies. In Allen, the defendant, during
trial, wore an electronic security belt as a restraining device
and did not object to its use. Allen, 354 Ill. App. 3d at 445,
821 N.E.2d at 38. In spite of the forfeiture of the issue, the
court found plain error and reversed. Allen, 354 Ill. App. 3d at
446, 821 N.E.2d at 339. The court reached this conclusion not by
evaluating the facts of Allen as applied to the plain-error
doctrine, but by concluding Doss controlled. See Allen, 354 Ill.
App. 3d at 446, 821 N.E.2d at 339.
Later, in People v. Brown, 356 Ill. App. 3d 1088, 1090-
91, 828 N.E.2d 351, 354 (2005), the Third District majority again
addressed the shackling issue and again cited Doss as the basis
for finding plain error. But Justice Schmidt, who authored the
Doss opinion (see Doss, 347 Ill. App. 3d at 420, 807 N.E.2d at
698), criticized the Third District's reliance on Doss. Justice
Schmidt objected to an automatic finding of plain error and wrote
the shackling issue in Doss "was reviewed under the plain[-]error
doctrine because we found the evidence closely balanced." Brown,
356 Ill. App. 3d at 1091, 828 N.E.2d at 355 (Schmidt, J., concur-
ring in part and dissenting in part). Justice Schmidt further
took the blame for the improper reliance on Doss:
"To the extent that the Doss opinion can be
read to stand for the proposition that shack-
ling of the ankles without a Boose hearing is
always reversible error, that can be laid on
the shoulders of the relatively new and inar-
ticulate appellate judge who authored the
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opinion." Brown, 356 Ill. App. 3d at 1091,
828 N.E.2d at 355 (Schmidt, J., dissenting).
Two decisions from the Fifth District, Crutchfield and
People v. DuPree, 353 Ill. App. 3d 1037, 820 N.E.2d 560 (2004),
rejected the proposition that shackling absent a Boose hearing is
always plain error. In Crutchfield, the court agreed that
requiring a defendant to wear a stun belt absent a Boose hearing
was a due-process violation but concluded defendant did not
establish the requirements of the second test under the plain-
error doctrine. In other words, the court found defendant did
not prove the error prejudiced him to the extent that it denied
him a fair trial. Crutchfield, 353 Ill. App. 3d at 1021-22, 820
N.E.2d at 514-15.
In DuPree, the Fifth District employed similar analysis
to reach the same conclusion. In DuPree, the defendant was
required to wear a stun belt without a Boose hearing and did not
object. DuPree, 353 Ill. App. 3d at 1042, 820 N.E.2d at 564-65.
Despite his forfeiture of the issue, the defendant urged the
reviewing court to apply the plain-error doctrine to his case and
argued "his trial was rendered fundamentally unfair by the fact
that he was required to wear a stun belt without the court having
first determined that it was necessary for him to do so."
DuPree, 353 Ill. App. 3d at 1043, 820 N.E.2d at 565.
The DuPree court acknowledged the unfairness but
determined the lack of objection rendered the violation not
fundamentally unfair. In support, the DuPree court stated its
conclusion was consistent with that of the United States Supreme
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Court, which held the following:
"'[A]lthough the State cannot, consis-
tently with the [f]ourteenth [a]mendment,
compel an accused to stand trial before a
jury while dressed in identifiable prison
clothes, the failure to make an objection to
the court as to being tried in such clothes,
for whatever reason, is sufficient to negate
the presence of compulsion necessary to es-
tablish a constitutional violation.'" (Em-
phasis in original.) DuPree, 353 Ill. App.
3d at 1044, 820 N.E.2d at 566, quoting
Estelle v. Williams, 425 U.S. 501, 512-13, 48
L. Ed. 2d 126, 135, 96 S. Ct. 1691, 1697
(1976).
The DuPree court further observed the stun belt did not
seem to affect the defendant's decision not to testify and no
evidence suggested the jury was aware of the stun belt. The
court concluded the failure to hold a Boose hearing did not
contribute to defendant's conviction and the plain-error doctrine
did not apply. DuPree, 353 Ill. App. 3d at 1044, 820 N.E.2d at
566.
After the Crutchfield and DuPree decisions, the Third
District acknowledged the two decisions and expressly disagreed
with their holdings in People v. Buckner, 358 Ill. App. 3d 529,
532-33, 831 N.E.2d 676, 679 (2005). The Buckner court, consider-
ing the claims of a defendant who was restrained by a stun belt
during trial, held the following:
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"We do not agree with the analysis of
the Fifth District on this particular issue.
Supreme Court Rule 615 makes it clear that
plain errors affecting substantial rights may
be noticed by an appellate court. 134 Ill.
2d R. 615(a). Moreover, the second prong of
the plain[-]error doctrine may be invoked in
circumstances where, despite the absence of
objection, application of the rule is neces-
sary to preserve the integrity and reputation
of the judicial process. People v. Herrett,
137 Ill. 2d 195, 561 N.E.2d 1 (1990)."
Buckner, 358 Ill. App. 3d at 533, 831 N.E.2d
at 679.
The Buckner court further found "the indiscriminate use of a stun
belt, a device that can deliver an 8-second, 50,000-volt shock
[citation], offends the dignity of our courts." Buckner, 358
Ill. App. 3d at 533, 831 N.E.2d at 680. The Buckner court last
concluded the application of waiver is an administrative limita-
tion and not a jurisdictional constraint, and even if it were,
"to find this error to be procedurally defaulted, our concern
over the indiscriminate use of this type of restraint would lead
us to relax the waiver rule in this case." Buckner, 358 Ill.
App. 3d at 533, 831 N.E.2d at 680.
We have considered the decisions of the Third and Fifth
Districts and conclude plain error does not automatically occur
when shackles are used without a Boose hearing. We find the
Third District decisions are unconvincing. Allen and Brown both
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relied on Doss for their plain-error findings. Such reliance is
undermined by the author of Doss, who asserts the plain-error
finding in Doss was based not on the second prong of the plain-
error doctrine but because the evidence was closely balanced.
See Brown, 356 Ill. App. 3d at 1091, 828 N.E.2d at 355 (Schmidt,
J., dissenting). Although the Doss court did not explicitly
state the reasons for its plain-error determination, Justice
Schmidt's assertion in Brown finds support in Doss's rationale
that the need to protect the Doss defendant's right to appear
innocent was especially significant given the defense's mistaken-
identity theory. See Doss, 347 Ill. App. 3d at 428, 807 N.E.2d
at 705.
In addition, the Buckner court did not expressly find
either prong of the plain-error rule was satisfied. In disagree-
ing with the Fifth District, the Buckner court simply asserted
"Supreme Court Rule 615 makes it clear that plain errors affect-
ing substantial rights may be noticed by an appellate court" and
the second prong of the plain-error rule could be invoked when
necessary to preserve the integrity and reputation of the judi-
cial process. Buckner, 358 Ill. App. 3d at 533, 831 N.E.2d 680.
We believe this is a mischaracterization of the plain-error
rule. It is well established that to establish the second prong,
one must show "the error is so fundamental and of such magnitude
that the accused was denied the right to a fair trial." People
v. Williams, 193 Ill. 2d 306, 348-49, 739 N.E.2d 455, 477 (2000);
see also People v. Johnson, 208 Ill. 2d 53, 64, 803 N.E.2d 405,
411-12 (2003); Armstrong, 183 Ill. 2d at 151, 700 N.E.2d at 969.
The necessity to preserve the integrity and reputation of the
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judicial process is a purpose of the doctrine, not a lone,
triggering factor for its implementation. See Williams, 193 Ill.
2d at 348, 739 N.E.2d at 477 (stating a purpose of the plain-
error rule is to "preserve the integrity and the reputation of
the judicial process").
Moreover, we need not, as the Buckner court did,
forgive the procedural defect because of "concern over the
indiscriminate use of this type of restraint." Buckner, 358 Ill.
App. 3d 533, 831 N.E.2d at 680. The Buckner decision, as well as
other decisions of the Third District, was considering the
standard operating practice of the Will County sheriff to force
the use of electronic stun belts in court. See, e.g., People v.
Martinez, 347 Ill. App. 3d 1001, 1003, 808 N.E.2d 1089, 1090
(2004). We do not condone the use of leg shackles absent the
requisite findings under Boose. We also note the use of leg
irons in this case does not rise to the same offensiveness or
extremity as the indiscriminate use of a stun belt, which, when
activated, incapacitates the wearer "up to 45 minutes and causes
immediate and uncontrollable defecation and urination." Marti-
nez, 347 Ill. App. 3d at 1006, 808 N.E.2d at 1093 (McDade, J.,
specially concurring).
We do not decide whether Buckner, rather than
Crutchfield or DuPree, reached the correct decision as to the
stun belt. However, we agree with Crutchfield and DuPree to the
extent those decisions show the shackling of a defendant without
a Boose hearing does not automatically amount to plain error.
Without objecting and preserving the issue for review, the
defendant must show the evidence was closely balanced or "the
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error was so serious it affected the fairness of his trial and
challenged the judicial process's integrity." People v. Thomp-
son, 359 Ill. App. 3d 947, 951, 835 N.E.2d 933, 936 (2005).
In this case, defendant did not meet his burden.
Defendant does not argue the evidence is closely balanced. Such
an argument would fail. The State presented the testimony of two
police officers, who both testified defendant possessed and then
ingested two clear bags that contained a white substance.
Johnson, defendant's ex-girlfriend, disputed testimony that
defendant fell on the bed. She also testified, however, she was
not in the bedroom, but in the doorway, the bed was not made, and
she did not see part of the search.
Defendant also has not shown prejudice. Although the
record shows the prosecutor could see the leg irons, the record
also shows the trial judge stepped from his bench and was satis-
fied the leg irons were not noticeable by the jury. Defense
counsel repositioned himself and was similarly satisfied.
Nothing indicates defendant's decision not to testify was influ-
enced in any way by the leg shackles. Moreover, defendant makes
no argument that the leg shackles prevented defendant from
assisting in his defense.
III. CONCLUSION
Defendant failed to establish either prong of the
plain-error doctrine. We find defendant forfeited consideration
of his argument on appeal and affirm the trial court's judgment.
Affirmed.
APPLETON and MYERSCOUGH, JJ., concur.
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