People v. Allen

Docket No. 99977.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PERI
ALLEN, Appellee.
Opinion filed June 2, 2006.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Fitzgerald and Garman
concurred in the judgment and opinion.
Justice Freeman dissented, with opinion, joined by Justices
McMorrow and Kilbride.
OPINION
After a jury trial in the circuit court of Will County, defendant,
Peri Allen, was found guilty of burglary and was sentenced to a four-
year term of imprisonment. The appellate court reversed and
remanded for a new trial, holding that defendant had Aadequately
alleged plain error@ where the trial court abused its discretion in
requiring defendant to wear an electronic stun belt as a restraining
device at trial without the explicit analysis and finding of necessity
required by People v. Boose, 66 Ill. 2d 261 (1977). 354 Ill. App. 3d
442, 446. We granted the State=s petition for leave to appeal under
Rule 315 (177 Ill. 2d R. 315), and granted Paul J. Kaupas, Will
County sheriff, permission to file an amicus curiae brief in support of
the State (155 Ill. 2d R. 345(a)).
Defendant was indicted for the offense of burglary for entering a
motor vehicle, belonging to Will County Auto Wreckers, with the
intent to commit a theft. Prior to jury selection on February 11, 2003,
defense counsel asked to approach the bench for a sidebar conference
with the trial judge, after which the judge stated: AApparently the
defendant still has his handcuffs on. They have been under the table
there, so the jurors didn=t get all the way into the courtroom so there
should be no problem, but if we can take them off now. Okay. Thank
you.@ Two days later, after the trial court=s denial of defendant=s
motion for a directed verdict and immediately prior to the State
resting and defense counsel calling defendant to the stand, the
following colloquy occurred:
A[Defense Counsel]: Oh, your Honor, one thing. I don=t
know exactly what it is that [defendant] has. There is
something that he is wearing on his back andB
THE COURT: Well, it is under his clothes, correct?
[Defense Counsel]: Right, but even standing here I can
notice it. It is a fairly noticeable object.
THE COURT: Would you prefer to just have him seated
in the witness stand at this point?
[Defense Counsel]: I would prefer unless that can be
removed somehow.
THE COURT OFFICER: No.
THE COURT: That=s a security device. The deputy has
control of it. [Defendant] does not have shackles on. He does
not have handcuffs on. He is in custody and he is restrained in
no other manner whatsoever, so for security purposes we
keep that on him. At this time it has been out of view. It is
under his clothes, but I think that if he did walk across the
room, [the jury] may view something or a form of some kind
under his clothes, so if you prefer to have him seated in the
box, we can do that now.
[Defense Counsel]: Can we do that now?
THE COURT: Have a seat right up here, sir. When you=re
sworn in, I suppose you can just sit. You don=t have to stand
to be sworn in.
-2-
DEFENDANT: Right.
THE COURT: That way they=ll never see it. All right,
bring the jurors in.@ (Emphasis added.)
No further mention of the Asecurity device@ was made at trial, and
defendant did not include any issue concerning the restraint in his
posttrial motion.
On direct appeal, the sole issue raised by defendant was Awhether
it was error for the defendant to be forced to wear an electronic
security belt as a restraining device at trial.@ 354 Ill. App. 3d at 443.
Initially, we agree with the appellate court that while the trial court
never referred to the Asecurity device@ as an electronic stun belt, Awe
feel confident in our assessment that it was indeed that type of
restraining device.@ 354 Ill. App. 3d at 443. The State does not
suggest what the bulging security device under defendant=s shirt
might have been, other than a stun belt. The appellate court=s finding
is especially probable where, in People v. Martinez, 347 Ill. App. 3d
1001, 1003 (2004), another recent Will County circuit court case, the
State asked the appellate court to validate the Will County sheriff=s
Astandard operating procedure@ of requiring all felony defendants in
custody to wear a stun belt while appearing in court. Even the dissent
agrees that such a Ablanket policy@ existed in the Will County
sheriff=s department. Slip op. at 31 n.6 (Freeman, J., dissenting,
joined by McMorrow, J. and Kilbride, J.) In addition, there is at least
one other case pending before this court involving the use of
electronic stun belts on felony defendants in Will County. See People
v. Johnson, 356 Ill. App. 3d 208 (3d Dist. 2005), leave to appeal
pending, No. 100451.
Having agreed with the appellate court that defendant was
wearing an electronic stun belt, we now examine whether Boose,
which generally applies to the Aphysical restraint@ of defendants in the
courtroom (Boose, 66 Ill. 2d at 266), also applies to the concealed
electronic restraint involved in this case. First, the Will County
sheriff, as amicus curiae, argues, inter alia, that an electronic
Asecurity belt@ is not a restraining device that lends itself to due
process scrutiny pursuant to Boose, citing Deck v. Missouri, 544 U.S.
___, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005). However, Deck does
not speak to the circumstances present here. In Deck, the United
States Supreme Court concluded that due process Aprohibit[s] the use
-3-
of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified
by a state interest specific to a particular trial.@ (Emphasis added.)
Deck, 544 U.S. at ___, 161 L. Ed. 2d at 963, 125 S. Ct. at 2012.
Nowhere in Deck does the Court consider the question raised herein,
i.e., whether a concealed electronic stun belt worn under a
defendant=s garments should be classified as a Aphysical restraint@
which lends itself to due process scrutiny. Accordingly, Deck does
not support the argument of amicus, as it does not even address
concealed restraints. Indeed, we find that the Deck Court=s stated
reasons which prompt due process scrutiny in visible restraint
casesBthe presumption of innocence, securing a meaningful defense,
and maintaining dignified proceedingsBmay be applied with like
force to stun belts which are not necessarily visible to the jury. See
Deck, 544 U.S. at ___, 161 L. Ed. 2d at 963-64, 125 S. Ct. at 2013.
In In re Staley, 67 Ill. 2d 33, 37 (1977), this court stated:
AThe possibility of prejudicing a jury, however, is not the
only reason why courts should not allow the shackling of an
accused in the absence of a strong necessity for doing so. The
presumption of innocence is central to our administration of
criminal justice. In the absence of exceptional circumstances,
an accused has the right to stand trial >with the appearance,
dignity, and self-respect of a free and innocent man.=
[Citation.] It jeopardizes the presumption=s value and
protection and demeans our justice for an accused without
clear cause to be required to stand in a courtroom in manacles
or other restraints while he is being judged.@
Thus, even when there is no jury, any unnecessary restraint is
impermissible because it hinders the defendant=s ability to assist his
counsel, runs afoul of the presumption of innocence, and demeans
both the defendant and the proceedings. See Staley, 67 Ill. 2d at 36-
37; Martinez, 347 Ill. App. 3d at 1005-06. We therefore agree with
the appellate court herein which, citing Martinez, concluded that an
electronic stun belt Ais no less a restraint than manacles or handcuffs.@
354 Ill. App. 3d at 445.
As noted by defendant, it appears that almost every court which
has reviewed this issue has held that electronic stun belts are
restraining devices the use of which is subject to the same restrictions
-4-
as shackles. See, e.g., United States v. McKissick, 204 F.3d 1282,
1299 (10th Cir. 2000); People v. Mar, 28 Cal. 4th 1201, 1219-20, 52
P.3d 95, 106, 124 Cal. Rptr. 2d 161, 175 (2002); People v. Melanson,
937 P.2d 826, 835 (Colo. App. 1996); Young v. State, 269 Ga. 478,
479, 499 S.E.2d 60, 61 (1998); State v. Adams, 103 Ohio St. 3d 508,
529-30, 817 N.E.2d 29, 52-53 (2004). One exception to this approach
for dealing with electronic stun belts is found in Wrinkles v. State,
749 N.E.2d 1179, 1194 (Ind. 2001), wherein the Supreme Court of
Indiana banned the use of such restraints from its courtrooms
altogether. However, contrary to the dissent=s contention, in this case
we are not faced with the question of whether stun belts should
continue to be used in Illinois courtrooms. Rather, we are asked to
determine whether, and we find that, this court=s holdings in Boose
and Staley regarding shackles apply equally to those defendants who
are restrained by means of an electronic stun belt worn under their
clothing at trial, and that nothing in Deck precludes application of due
process protections to such cases.
Given these findings, we hold that the use of electronic stun belts
in the courts of this state is warranted only where there has been a
showing of manifest need for the restraint. See Boose, 66 Ill. 2d at
265-66. This holding comes with the understanding that there are
certain circumstances that will require restraint of a defendant at trial.
Factors to be considered by the trial court in making this
determination may include: (1) the seriousness of the present charge
against the defendant, (2) the defendant=s temperament and character,
(3) the defendant=s age and physical characteristics, (4) the
defendant=s past record, (5) any past escapes or attempted escapes by
the defendant, (6) evidence of a present plan of escape by the
defendant, (7) any threats by the defendant to harm others or create a
disturbance, (8) evidence of self-destructive tendencies on the part of
the defendant, (9) the risk of mob violence or of attempted revenge
by others, (10) the possibility of rescue attempts by other offenders
still at large, (11) the size and mood of the audience, (12) the nature
and physical security of the courtroom, and (13) the adequacy and
availability of alternative remedies. Boose, 66 Ill. 2d at 266-67.
The determination of whether and how to restrain a defendant is
left to the discretion of the trial court, and a reviewing court examines
whether the trial court has abused that discretion. Boose, 66 Ill. 2d at
267. The trial court should state for the record its reasons for
-5-
allowing the defendant to remain physically restrained, and it should
give the defendant=s counsel an opportunity to present reasons why
the defendant should not be restrained. Boose, 66 Ill. 2d at 266. In
this case, the State argues that the trial court did not abuse its
discretion in ordering the stun belt to remain on defendant without
conducting a Boose hearing. However, based on the record presented,
we disagree. The only reason given by the court to sustain its ruling
was that the restraint was necessary Afor security purposes.@ While
the security of the courtroom is indeed one of the factors to be
considered, without further explanation or justification by the court
and where it appears that no other ABoose factors@ supported this
decision, we find the trial court=s ruling to be an abuse of its
discretion.
Here, as in Martinez, the trial court never made a Boose analysis;
it simply deferred to the judgment of the sheriff. We agree with the
Martinez court that this abdication of the trial court=s responsibility is
not acceptable. AThe court must rigorously control its own courtroom
procedures and, consistent with the mandates of due process, protect
the rights of the parties and the public.@ Martinez, 347 Ill. App. 3d at
1004. Indeed, the type of policy adopted by the Will County sheriff,
requiring all custodial felony defendants to wear stun belts while in
court, was frowned upon by this court almost 30 years ago in Boose.
A >The fact that defendant was a state prison inmate who had
been convicted of robbery and was charged with a violent
crime did not, without more, justify the use of physical
restraints. *** [T]he trial judge must make the decision to use
physical restraints on a case-by-case basis. The court cannot
adopt a general policy of imposing such restraints *** unless
there is a showing of necessity on the record. The court=s
summary denial of the motion to release defendant from his
shackles was not based upon such a showing of record and
implies a general policy of shackling all inmate defendants
accused of violent crimes.= @ (Emphasis added.) Boose, 66 Ill.
2d at 268, quoting People v. Duran, 16 Cal. 3d 282, 293, 545
P.2d 1322, 1329, 127 Cal. Rptr. 618, 625 (1976).
Accordingly, we hold that the trial court=s failure to follow the
procedures set forth in Boose before ordering that defendant continue
to wear an electronic stun belt during his trial constitutes a due
-6-
process violation. See People v. Crutchfield, 353 Ill. App. 3d 1014,
1021 (2004); Martinez; 347 Ill. App. 3d at 1004.
In Martinez, the appellate court, upon finding that the trial court
had abdicated its responsibility to determine the measures necessary
to assure courtroom security, reversed the defendant=s conviction and
remanded for a new trial. Martinez, 347 Ill. App. 3d at 1005.
However, in this case, as the appellate court noted, defendant did not
even mention the electronic restraint at any time until the third day of
his trial, while the defendant in Martinez objected vigorously. 354 Ill.
App. 3d at 445; see also Staley, 67 Ill. 2d at 35-38 (reversal and
remand for new adjudicatory hearing required where no Boose
hearing conducted by trial court after defense counsel moved that
defendant=s handcuffs be removed during adjudicatory hearing).
Defense counsel=s statement AI would prefer [defendant be seated in
the witness stand before the jury returns] unless [the stun belt] can be
removed somehow@ does not constitute an objection, but merely an
alternative to the court=s suggestion on how to keep the jury from
seeing the device under defendant=s clothing. After the court rejected
counsel=s alternative suggestion to remove the restraint, counsel did
not ask that an objection be noted on the record or that a Boose
hearing be held, but simply deferred to the procedure suggested by
the court.
The failure to object to alleged error at trial and raise the issue in
a posttrial motion ordinarily results in the forfeiture of the issue on
appeal. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). 1 The
appellate court herein therefore reasoned that it must decide whether
the trial court=s error Awas so significant that it warrants plain error
review.@ 354 Ill. App. 3d at 445. The majority then determined that
People v. Doss, 347 Ill. App. 3d 418 (2004), was controlling, as there
Awe found plain error, since the defendant was denied a fair trial
because of the failure of the trial court to conduct the appropriate
manifest need analysis before ordering the defendant to be shackled
1
While courts often use the terms Aforfeit,@ Awaive,@ and Aprocedural
default@ interchangeably in criminal cases, for purposes of this opinion, we
choose to use Aforfeited@ to mean issues that could have been raised, but
were not, and are therefore barred. See People v. Blair, 215 Ill. 2d 427, 444
n.2 (2005).
-7-
at trial.@ 354 Ill. App. 3d at 446. Thereafter, the appellate court held
that here, as in Doss, defendant had Aadequately alleged plain error@
which justified its review and also required the reversal of
defendant=s conviction and remand for a new trial. 354 Ill. App. 3d at
446. We disagree with the appellate court=s reasoning and also its
conclusions.
Supreme Court Rule 615(a) provides: AAny error, defect,
irregularity, or variance which does not affect substantial rights shall
be disregarded. Plain errors or defects affecting substantial rights may
be noticed although they were not brought to the attention of the trial
court.@ (Emphasis added.) 134 Ill. 2d R. 615(a). In People v. Herron,
215 Ill. 2d 167, 178-79 (2005), this court recently stated as follows:
AThe plain-error doctrine, as it has developed in Illinois,
allows a reviewing court to reach a forfeited error affecting
substantial rights in two circumstances. First, where the
evidence in a case is so closely balanced that the jury=s guilty
verdict may have resulted from the error and not the evidence,
a reviewing court may consider a forfeited error in order to
preclude an argument that an innocent person was wrongly
convicted. [Citation.] Second, where the error is so serious
that the defendant was denied a substantial right, and thus a
fair trial, a reviewing court may consider a forfeited error in
order to preserve the integrity of the judicial process.
[Citations.] This so-called disjunctive test does not offer two
divergent interpretations of plain error, but instead two
different ways to ensure the same thingBnamely, a fair trial.@
(Emphasis added.)
In another recent case, People v. Brown, 356 Ill. App. 3d 1088,
1090-91 (2005), the appellate court majority, as did the appellate
court majority herein, cited Doss for the proposition that restraining
defendants without a Boose hearing automatically constitutes plain
error and is not subject to forfeiture. However, we agree with Justice
Schmidt=s partial dissent in Brown, which argued that the majority
was misreading Doss. Indeed, Justice Schmidt, who authored the
Doss opinion, stated: ADoss did not hold that it is always plain error
to shackle a defendant without a Boose hearing. Rather, the shackling
issue was reviewed under the plain error doctrine because we found
the evidence closely balanced.@ Brown, 356 Ill. App. 3d at 1091
-8-
(Schmidt, J., concurring in part and dissenting in part). In the appeal
before us, defendant appears to have accepted this interpretation of
Doss. Indeed, defendant impliedly admits that the evidence was not
closely balanced where he contends only that the second type of plain
error occurred, stating: A[I]t was such a serious error that it threatened
the fundamental fairness of the defendant=s trial and the integrity of
the judicial process.@
In Herron, 215 Ill. 2d at 187, this court further described the
second prong of the plain error test, stating: AIn the second instance,
the defendant must prove there was plain error and that the error was
so serious that it affected the fairness of the defendant=s trial and
challenged the integrity of the judicial process. [Citation.] Prejudice
to the defendant is presumed because of the importance of the right
involved ***. *** [However,] the burden of persuasion remains with
the defendant.@ (Emphasis added.) Indeed, defendant, citing this
passage from Herron, acknowledges that he bears the burden of
persuasion as to whether the error was so serious that it affected the
fairness of his trial and challenged the integrity of the judicial
process. Thus, given the test for determining plain error under the
Asecond prong@ as set forth in Herron, we agree with Crutchfield, 353
Ill. App. 3d at 1021, a case from the Fifth District of the appellate
court which, under facts similar to those presented here, held that
even constitutional errors can be forfeited (see People v. Thurow, 203
Ill. 2d 352, 363-64 (2003)) if the error is not of such magnitude that it
deprives the defendant of a fair trial. See People v. Graham, 206 Ill.
2d 465, 476 (2003). See also People v. Barney, 363 Ill. App. 3d 590
(2006); People v. DuPree, 353 Ill. App. 3d 1037 (2004) (both holding
that the physical restraint of a defendant at trial does not
automatically amount to plain error).
Moreover, a fair trial is different from a perfect trial. Herron, 215
Ill. 2d at 177; People v. Bull, 185 Ill. 2d 179, 214 (1998). The plain-
error doctrine is not A >a general saving clause preserving for review
all errors affecting substantial rights whether or not they have been
brought to the attention of the trial court.= @ Herron, 215 Ill. 2d at 177,
quoting People v. Precup, 73 Ill. 2d 7, 16 (1978). Instead, it is a
narrow and limited exception to the general rule of forfeiture, whose
purpose is to protect the rights of the defendant and the integrity and
reputation of the judicial process. Herron, 215 Ill. 2d at 177. Thus,
while defendant herein has proven a due process violation which
-9-
amounted to error by showing that he was required to wear an
electronic stun belt at trial without the court having first determined
that it was necessary, defendant has failed to persuade this court Athat
the error was so serious that it affected the fairness of [his] trial and
challenged the integrity of the judicial process.@ Herron, 215 Ill. 2d at
187; see also People v. Nicholas, 218 Ill. 2d 104, 121 (2005) (the
burden of persuasion remains with the defendant under the second
prong of the plain error test, but before the court may apply either
prong, there must be a plain error).
Here, defendant cannot, and does not, claim that the evidence
presented was closely balanced. Further, he has not shown that his
presumption of innocence, ability to assist his counsel, or the dignity
of the proceedings was compromised. In fact, defendant wore the
electronic device into the third day of his jury trial with no objection,
complaint, or any apparent difficulty consulting with his counsel.
Thus, we agree with the appellate court in Nicholas that although the
failure to conduct a Boose hearing under these circumstances is an
error, defendant=s failure to object and to carry his burden of
persuasion amounts to forfeiture of the error, where he cannot
establish that it prevented him from obtaining a fair trial. See Estelle
v. Williams, 425 U.S. 501, 512-13, 48 L. Ed. 2d 126, 135, 96 S. Ct.
1691, 1697 (1976) (although the State cannot compel an accused to
stand trial before a jury in prison clothes, the failure to make an
objection to the court to being tried in such clothes, for whatever
reason, is sufficient to negate the presence of compulsion necessary
to establish a constitutional violation); see also People v. Hyche, 77
Ill. 2d 229, 241 (1979) (rejecting the defendant=s contention that his
conviction should be reversed due to his appearance before the venire
in handcuffs, where he Awaived any error by failing to object@).
Further, we reject the dissent=s attempt to distinguish Estelle and
Hyche, where those cases, as here, recognized that a serious assault
on the defendant=s presumption of innocence was implicated, but held
that the defendant had failed to properly preserve the error for review.
Estelle, 425 U.S. at 513, 48 L. Ed. 2d at 135, 96 S. Ct. at 1697;
Hyche, 77 Ill. 2d at 241. While the dissent contrasts Hyche with
People v. Buss, 187 Ill. 2d 144, 215 (1999), wherein the court chose
to review a shackling issue on its merits, the dissent fails to note that
the defendant in Buss had filed a pretrial motion to preclude
shackling and had included the issue in his posttrial motion. Only in
-10-
the alternative did he argue plain error or that his counsel was
ineffective for failing to properly preserve the issue for review.
Additionally, although the dissent states that this court, in Buss,
Acited with approval People v. Bennett, 281 Ill. App. 3d 814 (1996)@
(slip op at 23 (Freeman, J. dissenting, joined by McMorrow and
Kilbride, JJ.)), the Bennett court held Ait was plain error for the judge
in this case to deny the defense request to have the defendant=s
shackles removed,@ when Athe only reason the judge gave for refusing
the defense motion related to the security of the courtroom@ and the
court failed to address the other Boose factors. Bennett, 281 Ill. App.
3d at 825.
Next, we note that in his dissent, Justice Freeman agrees with the
majority opinion that the issue presented in this case is Awhether
defendant is entitled to a new trial because he was made to wear,
without a showing of manifest need, an electronic stun belt as a
restraining device during his trial.@ Slip op. at 16 (Freeman, J.,
dissenting, joined by McMorrow and Kilbride, JJ.). However, after
defining the parameters of the case, the dissent goes on to enlarge
those parameters by contending that we should also address the
propriety of using stun belts in any criminal trial. While we might
agree with some of the medical and other important concerns
identified in the lengthy dissent, as we previously noted, the issue of
whether to continue to use such restraints in Illinois courts is,
unfortunately, simply not raised in this case. Thus, despite the
dissent=s desire for this court to determine whether stun belts are an
acceptable form of restraint in Illinois, until a case comes before us
which actually raises that particular issue, any attempt to answer such
an abstract question would be improper. See People v. Campa, 217
Ill. 2d 243, 269 (2005) (as a general rule, a court of review will not
decide moot or abstract questions or render advisory opinions).
Therefore, the dissent=s claim that this court=s opinion has Athe
effect of countenancing the continued use of stun belts@ in Illinois,
simply because we decline to engage in dicta, is unfair at best. Slip
op. at 39 (Freeman, J., dissenting, joined by McMorrow and Kilbride,
JJ.). Indeed, contrary to that assertion, the majority, in addressing the
limited issues raised in this case of first impression, fully appreciates
the impact that electronic restraints may have on a defendant=s trial
rights. This opinion sends a clear message to the trial courts: control
of the courtroom is vested in the trial judge. While the sheriff may be
-11-
responsible for courtroom security, it is the trial judge who makes the
determination as to how security involving a defendant who is on
trial is handled, so as to fully protect his constitutional rights.
Towards that end, a Boose hearing is required in stun belt cases, as in
shackle or handcuff cases, because regardless of the differences
between the types of restraints, they each implicate due process
concerns and thus require strict limits be placed on their use.
Additionally, this opinion takes judicial notice of the routine use
of stun belts on felons in other Will County cases in order to establish
the fact of their use here, and cites cases both in and outside our
jurisdiction in support of our holding that stun belts should be subject
to a Boose hearing. The dissent, however, relies on information
outside the record and cases outside our jurisdiction to speculate as to
the type and effect of the stun belt worn in this case and to proselytize
for a ban on the use of stun belts in Illinois, an issue which we have
clearly determined to be outside the scope of this appeal. The facts
are that defendant himself did not ask that we determine whether the
Amedical impact@ or anxiety which stun belts may create makes them
an improper form of restraint under all circumstances, and there is
nothing of record to show that the type of electronic device worn in
the nonprecedential cases cited by the dissent are in any way similar
to the device worn by defendant. Further, although the dissent agrees
that defendant has forfeited the issues regarding the trial court=s
requirement that he wear an electronic restraint where neither he nor
his counsel made any overt complaint at trial or in a posttrial motion
(People v. Enoch, 122 Ill. 2d 176, 186-87 (1988), the dissent then
invites speculation as to what defendant could have been
experiencing. Such speculation is completely irrelevant and has no
place in this court=s review, which must be based solely on the facts
of record. See People v. Guerrero, 356 Ill. App. 3d 22, 28-29 (2005);
People v. Colon, 20 Ill. App. 3d 858, 864 (1974) (reviewing court
cannot speculate as to facts that do not appear in the record).
A fair reading of the cold transcript leads us to the more likely
conclusion that defendant was not suffering any of the anxiety or
nervousness speculated upon by the dissent. As noted, what the
record does show is that neither defendant nor his counsel objected to
the use of the stun belt at any time. Counsel=s only expressed concern,
made on the third day of trial, when defendant was about to take the
witness stand, was that whatever defendant was wearing under his
-12-
clothes might be visible to the jury as he walked across the room to
take the stand. The colloquy between defense counsel and the trial
judge clearly reveals that counsel did not even know what defendant
was wearing under his clothes. This fact supports the inference that
defendant never expressed any concern to his attorney about wearing
the device, nor did it impinge on his ability to work with counsel. See
Buss, 187 Ill. 2d at 217 (no error occurred where: (1) the trial court=s
initial failure to state his reasons for requiring shackling was
Apresumably because defense counsel indicated that defendant did not
object to leg shackles so long as the jury did not see them;@ (2) the
court explained its reasons for the shackling in detail during its denial
of the defendant=s post trial motion; (3) Athe tables in the courtroom
had been skirted so that the shackling *** was >never obvious to the
jurors;= @ and (4) defendant=s ability to consult with counsel had not
been hindered by the shackling). Here, the dissent can point to
nothing of record which demonstrates that defendant was made
nervous or anxious by the fact that he was wearing the device. Thus,
none of the actions of defendant, his counsel or the court support the
conclusion that defendant=s presumption of innocence or the dignity
of the court was effected by the error in failing to hold the requisite
Boose hearing. Instead, counsel=s concern about the possibility of the
jury=s seeing the bulky device under defendant=s clothing was
resolved by the trial court=s action in seating defendant on the stand
before the jury reentered the courtroom.
Further, we disagree with the dissent=s claim that this procedure
of Apreseating@ the defendant, because it was dissimilar to that used
with previous witnesses, would cause the jury to Aattach undue
significance to such discrepancies.@ Slip op. at 29 (Freeman, J.,
dissenting, joined by McMorrow and Kilbride, JJ.). It is just as
reasonable to draw the opposite conclusion, i.e., that while those of
us Atrained in the law@ (slip op. at 29 (Freeman, J., dissenting, joined
by McMorrow and Kilbride, JJ.)) and familiar with court proceedings
would know that it is somewhat unusual for witnesses to already be
seated when court reconvenes and the jury reenters, few lay people,
not being involved in jury trials on a regular basis, would actually
discern this difference, much less impute a negative connotation
toward defendant from it. Nor does the dissent=s quotation from
Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct.
1057, 1061 (1970), that disparate treatment of defendant from other
-13-
witnesses not on trial A >might have a significant effect on the jury=s
feelings about the defendant= @ support his theory. Slip op. at 20, 29
(Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.),
quoting Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90
S. Ct. 1057, 1061 (1970). This comment by the Court in Allen in no
way dealt with any disparate treatment of defendant from other
witnesses, but concerned the jury=s response to Athe sight of shackles
and gags@ on that defendant after he displayed conduct which was
disorderly, disruptive and disrespectful to the court. Allen, 397 U.S.
at 343-44, 25 L. Ed. 2d at 359, 90 S. Ct. at 1061.
Finally, we object to the dissent=s statement that Athe unjustified
use of the stun belt in this case is deemed inconsequential by a
majority of this court.@ Slip op. at 39 (Freeman, J., dissenting, joined
by McMorrow and Kilbride, JJ.). The instant matter presented a
narrow issue which we have resolved through the consistent use of
this court=s previous case law. We have cited as controlling this
court=s findings in Boose and Staley that a trial court=s failure to
examine the necessity of requiring a defendant to wear restraints at
trial is a due process violation, and continued this line of reasoning to
include not only visible restraints, but the type of Asemi-hidden@
electronic device used herein. Therefore, contrary to the dissent=s
assertion, we have most definitely shown that an error such as
occurred here has consequences. However, Boose and Staley , as well
as Martinez and Deck, present a different factual situation which
allows for a per se finding of reversible error which is not applicable
under the facts presented in this case. Here, unlike the
aforementioned cases where a trial objection was made, due to
defendant=s complete forfeiture of the issue, not only the fact of the
error but proof that the error Aaffected the fairness of the defendant=s
trial and challenged the integrity of the judicial process@ was
necessary. Herron, 215 Ill. 2d at 187; see also Barney, 363 Ill. App.
3d at 597 (AThe necessity to preserve the integrity and reputation of
the judicial process is a purpose of the [plain error] doctrine, not a
lone, triggering factor for its implementation@). Thus, simply because
we follow the strict application of that doctrine as recently set forth in
Herron and find that defendant has not met his burden of persuasion
does not mean we are in conflict with our decisions in Boose and
Staley; cases with different facts must be decided based on those
facts. Nor is the Supreme Court=s holding in Deck that a defendant
-14-
need not demonstrate actual prejudice to make out a due process
violation contrary to our decision, which finds a due process violation
but refuses to find plain error in the violation.
As this court stated in People v. Blue, 189 Ill. 2d 99, 138 (2000),
A[t]o determine whether defendant=s right to a fair trial has been
compromised *** [under] the second prong of the plain error test ***
[w]e ask whether a substantial right has been affected to such a
degree that we cannot confidently state that defendant=s trial was
fundamentally fair.@ We thus agree with the dissent and with
defendant that the trial court=s actions here amounted to error.
However, under the circumstances presented, we are not persuaded
that such error resulted in fundamental unfairness or caused a Asevere
threat@ to the fairness of defendant=s trial. See People v. Durr, 215 Ill.
2d 283, 298, 308 (2005). Thus, where defendant has failed to
establish plain error under the second prong as set forth in Herron,
we hold that the procedural default of this issue must be honored. See
Durr, 215 Ill. 2d at 308; see also Blair, 215 Ill. 2d at 444 n.2
(Aprocedural default@ relates to the failure by counsel to comply with
certain procedural requirements which results in the forfeiture of the
defendant=s right to raise that error on appeal). Because we find that
the right to review is forfeited in this case, we need not reach the
question which divided the appellate court below, i.e., whether a new
proceeding or merely a retrospective Boose hearing is the proper
remedy where plain error has occurred.
For these reasons, the judgment of the appellate court is
reversed and the judgment of conviction entered by the circuit court
is affirmed.
Appellate court judgment reversed;
circuit court judgment affirmed.
JUSTICE FREEMAN, dissenting:
The issue in this case is whether defendant is entitled to a new
trial because he was made to wear, without a showing of manifest
need, an electronic stun belt as a restraining device during his trial.
This court has never addressed the propriety of using this particular
kind of restraint at a criminal trial. However, as today=s opinion
makes clear, there exists a body of our case law which addresses how
other types of security devices impact upon a defendant=s trial rights.
Indeed, the court acknowledges that the Astated reasons which prompt
-15-
due process scrutiny in visible restraint casesBthe presumption of
innocence, securing a meaningful defense, and maintaining dignified
proceedingsBmay be applied with like force to stun belts which are
not necessarily visible to the jury.@ (Emphasis added.) Slip op. at 4.
My colleagues in the majority then hold that this court=s holdings in
People v. Boose, 66 Ill. 2d 261 (1977), and In re Staley, 67 Ill. 2d 33
(1977), Aapply equally to those defendants who are restrained by
means of an electronic stun belt worn under clothing at trial and that
nothing *** precludes applications of due process protections to such
cases.@ (Emphasis added.) Slip op. at 5. The court further holds that a
Atrial court=s failure to follow the procedures set forth in Boose before
ordering that defendant continue to wear an electronic stun belt
during his trial [constitutes] a due process violation.@ Slip op. at 6-7.
However, in finding that an error of constitutional proportions has
occurred in this case, the court states that Ait is not persuaded that the
error resulted in fundamental unfairness or caused a >severe threat= to
the fairness of his trial.@ Slip op. at 15. After considering our case law
on restraints and the nature of the electronic stun belt, I am persuaded
that the error resulted in fundamental unfairness or caused a Asevere
threat@ to the fairness of the trial. I would hold that defendant has
satisfied the second prong of our plain error rule, i.e., that the error
was so serious that it affected the fairness of defendant=s trial and that
it challenged the integrity of the judicial process For these reasons, I
dissent.
I
The court correctly notes that defendant did not properly preserve
this issue for review. While my colleagues view the remarks between
defense counsel and the trial judge as a failure to object, I view them
somewhat differently. Defense counsel stated that his preference was
for defendant not to wear the belt at all. As the excerpt from the
transcript demonstrates, however (see slip op. at 2-3), the trial judge
made clear that such a preference would be out of the question. In
other words, the use of the belt was not open to argument. I would
characterize the colloquy between the two as being enough to register
a contemporaneous objection. This is an academic quibble, however,
as defendant did not include the matter in his posttrial motion, and his
failure to do so results in the issue=s procedural default on appeal.
-16-
People v. Enoch, 122 Ill. 2d 176, 186 (1988).
Nevertheless, this court has long recognized that the doctrine
concerning procedural default is not absolute. People v. Carlson, 79
Ill. 2d 564, 576 (1980), citing People v. Burson, 11 Ill. 2d 360 (1957).
Indeed, this court has developed a plain-error doctrine which allows a
reviewing court to reach a forfeited error in certain circumstances.
The doctrine, adopted formally as Supreme Court Rule 615, serves as
A >narrow and limited exception= to the general *** rule [of procedural
default].= @ People v. Szabo, 113 Ill. 2d 83, 94 (1986), quoting People
v. Pastorino, 91 Ill. 2d 178, 188 (1982).
This court has recently acknowledged that the purpose of the
doctrine is Ato protect the rights of the defendant and the integrity and
reputation of the judicial process.@ People v. Herron, 215 Ill. 2d 167,
177 (2005), citing People v. Howell, 60 Ill. 2d 117, 121 (1975). In
Herron, we reaffirmed that our plain-error doctrine allows a
reviewing court to consider unpreserved error in two distinct
circumstances: (i) in instances of prejudicial error which may have
affected the outcome in a closely balanced case, and (ii) in instances
of presumptively prejudicial error which must be remedied even
though it may not have affected the outcome. Herron, 215 Ill. 2d at
185. Under the first prong, a defendant must both prove that an error
occurred (see People v. Sims, 192 Ill. 2d 592, 621 (2000) quoting
People v. Wade, 131 Ill. 2d 370, 376 (1989) (A[b]efore invoking the
plain error exception, however, >it is appropriate to determine
whether error occurred at all= @)) and that Athe evidence was so
closely balanced that the error alone severely threatened to tip the
scales of justice against him. The State, of course, can respond by
arguing that the evidence was not closely balanced, but rather
strongly weighted against the defendant.@Herron, 215 Ill. 2d at 187.
Under the second prong, a defendant must prove both that an error
occurred and that
the error was so serious that it affected the fairness of the
defendant=s trial and challenged the integrity of the judicial
process. [Citation.] Prejudice to the defendant is presumed
because of the importance of the right involved [emphasis
added], >regardless of the strength of the evidence.=
(Emphasis in original.) Blue, 189 Ill. 2d at 138. In both
instances, the burden of persuasion remains with the
-17-
defendant.@ Herron, 215 Ill. 2d at 187.
Under the first prong, a defendant must establish that he was
prejudiced by the error. Under the second prong, defendant need not
establish specific prejudice, but rather, must show that the error
served to erode the integrity of the judicial process and undermined
the fairness of the trial proceedings.
It is important to distinguish between the two prongs of the rule.
As this court noted in People v. Mullen, 141 Ill. 2d 394, 402 (1990),
in cases Awhere the evidence is closely balanced, the probability that
a defendant=s conviction was caused by even a minor trial error is
greatly enhanced.@ Therefore, in those cases, the court will invoke the
plain error rule so that it can determine whether an error, which was
not objected to at trial and in post-trial motions, raises doubts as to
the validity of the jury=s verdict.@ Thus, the reviewing court concerns
itself with the specific effect that an alleged error may have had on
the jury. In contrast, the second prong of the rule encompasses those
errors Aof such magnitude that the commission thereof denies the
accused a fair and impartial trial.@ People v. Carlson, 79 Ill. 2d 564,
576-77 (1980). As Justice Ryan explained over 25 years ago,
Aunder this second aspect of the plain error rule, the errors
that will be considered as not having been waived, although
not properly preserved, are those that are so fundamental to
the integrity of the judicial process that they cannot be waived
or forfeited by the failure to raise them in the trial court. I also
believe that, being so fundamental to the integrity of the
judicial process, they must be considered by the court
regardless of the guilt of the defendant and therefore the
harmless error test, even harmless error beyond a reasonable
doubt, is not relevant.@ People v. Green, 74 Ill. 2d 444, 456-
57 (1979) (Ryan, J., specially concurring).
Thus, this prong is designed to give the court the ability to act in
those cases where systemic, structural errors serve to undermine the
presumptions of fairness that normally attach to our criminal trials.
As such, very few errors will fall within its ambit. The second prong
of our test thus Aguards against errors that erode the integrity of the
judicial process and undermine the fairness of the defendant=s trial.@
Herron, 215 Ill. 2d at 186.
Relying on Herron, defendant argues that the error committed by
-18-
the circuit court in this case eroded the integrity of the judicial
process and undermined the fairness of his trial. He contends that he
has satisfied his burden of persuasion because the error involved here
is so serious that prejudice can be presumed. In other words, he
argues that plain error occurred in this case pursuant to the second
prong of our plain error rule. The court responds to this argument by
noting Aeven constitutional errors can be forfeited [citation] if the
error is not of such magnitude that it deprives the defendant of a fair
trial.@ Slip op. at 9. Finding that defendant Ahas not shown that his
presumption of innocence, ability to assist his counsel, or the dignity
of the proceedings was compromised,@ the court concludes that while
error occurred, the error did not result in fundamental unfairness. Slip
op. at 10. I disagree.
It has long been recognized that an accused should never be
placed in restraints in the presence of the jury A >unless there is a
showing of a manifest need for such restraints.= @ Boose, 66 Ill 2d at
265-66 , quoting People v. Duran, 16 Cal. 3d 282, 290-91, 545 P.2d
1322, 1327, 127 Cal. Rptr. 618, 623 (1976); see also Deck v.
Missouri, 544 U.S. __, ___,161 L. Ed. 2d 953, 963, 125 S. Ct. 2007,
2012 (2005) (acknowledging that Athe Fifth and Fourteenth
Amendments prohibit the use of physical restraints visible to the jury
absent a trial court determination, in the exercise of its discretion, that
they are justified by a state interest specific to a particular trial@). This
means that a defendant has the right to appear without restraints,
unless such restraints are necessary to prevent escape, to protect the
safety of those in the courtroom, and to maintain order during trial.
Boose, 66 Ill. 2d at 266; Deck, 544 U.S. at __, 161 L. Ed. 3d at 962,
125 S. Ct. at 2012. This determination is left to the discretion of the
trial judge, who should select the type of restraint suitable in light of
all of the circumstances. Boose, 66 Ill. 2d at 266. This court requires
that, in such cases, the trial judge (i) allow a defendant to be heard on
the question of restraint, (ii) state for the record the reasons for
allowing a defendant to be placed in restraints, and (iii) make this
determination outside of the presence of the jury. On appeal, such a
decision will be reviewed for abuse of discretion. Boose, 66 Ill. 2d at
267.
Courts from all jurisdictions have recognized that the foregoing
procedures are necessary in restraint cases because placing a
defendant in restraints impacts on a defendant=s right to due process
-19-
in several different ways. Shackles and gags visible to the jury Amight
have a significant effect on the jury=s feelings about the defendant.@
Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353, 359, 90 S. Ct.
1057, 1061 (1970). As such, the presumption of innocence that a
defendant enjoys may be eroded. Courts have also found that
restraints may restrict a defendant=s ability to assist counsel during
the trial and offend the dignity of the judicial process. Deck, 544 U.S.
at __, 161 L. Ed. 2d at 963-64, 125 S. Ct. at 2013.
This court has long acknowledged these very concerns in restraint
cases. For example, in Boose, the defendant, a 15-year-old, was
charged with murder. The juvenile court waived jurisdiction of the
case and transferred it to the criminal division of the circuit court.
Subsequent to the defendant=s indictment, the defendant successfully
moved for a hearing to determine whether he was competent to stand
trial. The defendant was brought to court wearing handcuffs which
were threaded through shackles attached to a restraining belt wrapped
around his waist. The defendant=s attorney moved that all of the
restraints be removed whenever the jury was present. The trial judge
denied the motion, stating that Adue to the nature of the charges
against the defendant, I believe it would be better to have the
shackles remain.@ See Boose, 66 Ill. 2d at 265. After the jury found
the defendant competent to stand trial, his attorney moved for a new
trial, arguing that the shackling of the defendant was not necessary.
The trial judge denied the motion. Defendant then pled guilty to the
charge of murder and was sentenced to a term of imprisonment. On
appeal, the appellate court reversed, holding that the trial judge
abused his discretion by ordering that the defendant appear shackled
before the jury at the hearing on his competency. Boose, 66 Ill. 2d at
264.
Noting that an Aaccused should never be placed in restraints in the
presence of the jury >unless there is a showing of a manifest need for
such restraints,= @ this court affirmed the judgment of the appellate
court. Boose, 66 Ill. 2d at 265-66, quoting People v. Duran, 16 Cal.
3d 282, 290-91, 545 P.2d 1322, 1327, 127 Cal. Rptr. 618, 623 (1976).
The court emphasized the three distinct due process concerns the
question raised and then described the various factors that should be
considered by the trial judge when determining whether such a
manifest need exists. Boose, 66 Ill. 2d at 266-67. In so holding, the
court specifically rejected the notion that the nature of the charges
-20-
alone could justify the use of restraints. Boose, 66 Ill. 2d at 267-68.
Rather, the decision to use restraints must be made on a case-by-case
basis, and should not be the product of a general policy of imposing
restraints on all criminal defendants. Boose, 66 Ill. 2d at 267-68. In
rejecting the State=s contention that the need for such standards on the
question of shackling at a competency hearing is not as great as it
might be at the actual trial to determine guilt or innocence, this court
noted that a fair trial, in all its stages, A >is a fundamental requirement
in a criminal prosecution and when such requirement is not met, it
amounts to a denial of due process of law= @ no matter A >how strong
the evidence against an accused may be.= @ Boose, 66 Ill. 2d at 269,
quoting People v. Finn, 17 Ill. 2d 614, 617 (1959).
Two months later, in Staley, this court reaffirmed its teaching in
Boose. In Staley, a juvenile defendant was found delinquent for
severely beating a teacher in the detention home where the defendant
had been previously placed. At his initial hearing before the juvenile
court, the assistant Attorney General recommended that the defendant
remain handcuffed. The trial judge followed the recommendation,
stating that he did not want the behavior that occurred at the detention
home to occur in the courtroom. At the ensuing adjudicatory hearing
held on the State=s petition for delinquency, the defendant=s attorney
asked that the handcuffs be removed. The trial judge denied the
motion, and ultimately found the defendant delinquent. On appeal,
the appellate court reversed and remanded the matter for a new
adjudicatory hearing because the trial judge erred in requiring the
defendant to appear at the adjudicatory hearing in handcuffs. Staley,
67 Ill. 2d at 35-36.
In affirming the appellate court=s judgment, this court noted, once
again, the three distinct trial rights that restraints negatively impact,
i.e., the presumption of innocence, the ability to assist in the defense,
and the dignity of the judicial process. This court rejected the State=s
contention that, because the adjudicatory hearing took place before a
judge and not a jury, no error occurred. Prejudice to the jury, the
court noted, was not the only reason why shackling had been
disapproved:
AIn the absence of exceptional circumstances, an accused has
the right to stand trial >with the appearance, dignity, and self-
respect of a free and innocent man.= [Citation.] It jeopardizes
-21-
the presumption=s value and protection and demeans our
justice for an accused without clear cause to be required to
stand in a courtroom in manacles or other restraints while he
is being judged.@ Staley, 67 Ill. 2d at 37.
The court emphasized that in the absence of a showing of manifest
need, Awhich must be established clearly on the record,@ an accused
Acannot be tried in shackles whether there is to be a bench trial or a
trial by jury.@ Staley, 67 Ill. 2d at 38. The court did not engage in any
type of harmless error analysis, despite the fact that the utility of such
an inquiry was raised in the dissent. See Staley, 67 Ill. 2d at 41-42
(Ryan, J., dissenting) (arguing that defendant Ashould be required to
demonstrate that he has in some manner suffered prejudice by being
handcuffed during the trial@).
In examining the holdings in both Boose and Staley, it becomes
clear that the court was concerned with more than the effect that
shackles would have on the fact finder=s ability to adjudicate guilt in
light of a defendant=s right to the presumption of innocence. Both
cases identify other trial rights that have the potential to be negatively
impacted by the unjustified use of restraints, namely, the defendant=s
right to participate and assist in his defense and the right to a
dignified trial proceeding. The importance of the latter right, the right
to a dignified trial proceeding, was certainly at the center of this
court=s decision in Staley, where the court ordered a new trial despite
the fact that the adjudicatory proceeding in question was tried by a
judge and not a jury and where the court chose not to apply a
harmless-error analysis to the case. Thus, the court in Staley
considered the error to be so egregious that actual prejudice need not
be shown and that it was of no import if the defendant was shackled
in front of a jury or a judge.
Since our decision in Staley, this court has not spoken with clarity
with respect to what happens if a defendant raises the issue of unjust
restraint on appeal without properly preserving it in the trial court.
For example, in People v. Hyche, 77 Ill. 2d 229 (1979), the defendant
claimed that his conviction must be reversed because he appeared
before the venire in handcuffs on the first day of jury selection. This
court held that defendant Awaived any error by failing to object to his
appearance in handcuffs.@ Hyche, 77 Ill. 2d at 241. In so holding, this
court found that the United States Supreme Court=s opinion in Estelle
-22-
v. Williams, 425 U.S. 501, 48 L. Ed. 2d 126, 96 S. Ct. 1691 (1976),
provided guidance on the question. In Estelle, the defendant appeared
at trial in prison garb without objection. The Supreme Court held that
the State cannot, consistent with the fourteenth amendment, compel
an accused to stand trial before a jury while dressed in identifiable
prison garb, however, the defendant=s failure to raise an objection Ais
sufficient to negate the presence of compulsion necessary to establish
a constitutional violation.@ Hyche, 77 Ill. 2d at 241. This court found
that a similar conclusion was justified in Hyche Asince similar
considerations involving a defendant=s right to the presumption of
innocence are implicated when the defendant appears before the jury
in handcuffs.@ Hyche, 77 Ill. 2d at 241. The court also rejected
defendant=s contention that Staley and Boose mandated a different
result: A[Those cases] are distinguishable in that the defendants there,
unlike the defendant here, were improperly compelled to appear in
handcuffs over objection.@ Hyche, 77 Ill. 2d at 241.
In contrast to Hyche, this court in People v. Buss, 187 Ill. 2d 144
(1999), declined to hold a shackling claim waived and, instead,
elected to address the issue on the merits. In so doing, the court cited
with approval People v. Bennett, 281 Ill. App. 3d 814 (1996), which
found plain error existed when a defendant did not properly preserve
the issue of unnecessary shackling. In Bennett, the defendant, like
defendant here, asked that his restraints (shackles) be removed, and,
just like defendant here, did not include the issue in his post-trial
motion. The appellate court held that despite the defendant=s failure
to properly preserve the issue, plain error allowed for the court to
address the issue and provide relief. Bennett, 281 Ill. App. 3d at 823-
25,
In my view, the value of Hyche to today=s discussion is limited for
several reasons. First, the case dealt with a question of pretrial
restraint as opposed the present case, which concerns a defendant
who was restrained throughout the entirety of his adjudicatory
proceeding. Specifically, the defendant in Hyche appeared in a single
handcuff before members of the venire on the first day of jury
selection. It is unclear from the court=s opinion in Hyche how many of
the venire members who saw the defendant so restrained ultimately
served on the jury, as the opinion indicates the jury was not selected
in a single day. More importantly, however, Hyche is inconsistent
with the principles announced in Boose and Staley. In contrast to
-23-
those cases, the Hyche court focused on only one of the three trial
rights previously identified in Staley and Boose as being the focus of
the restraint issue, i.e., the presumption of innocence, and failed to
mention the other two trial rights, the ability to assist and participate
in the defense and the right to dignified proceedings. For this reason,
the Hyche court=s observation that Estelle provided guidance to the
question missed the mark. As I noted previously, Estelle addressed
the propriety of appearing before a jury in prison garb without
objection. While being seen by the jury in prison garb might well
devalue the presumption of innocence, prison attire is not the
equivalent of physical restraints. Unlike manacles, prison clothes do
not restrict movement such that the ability to assist in the defense is
compromised. Prison clothes also do not undermine the dignity of the
courtroom in the same way that the use of shackles has traditionally
been found to do. The United States Supreme Court has
acknowledged the deep-rooted, historical aversion the judiciary has
long had toward trying a criminal defendant in restraints:
AThe courtroom=s formal dignity, which includes the
respectful treatment of defendants, reflects the importance of
the matter at issue, guilt or innocence, and the gravity with
which Americans consider any deprivation of an individual=s
liberty through criminal punishment. And it reflects a
seriousness of purpose that helps to explain the judicial
system=s power to inspire the confidence and to affect the
behavior of a general public whose demands for justice our
courts seek to serve. The routine use of shackles in the
presence of juries would undermine these symbolic yet
concrete objectives. As this Court has said, the use of
shackles at trial >affront[s]= the >dignity and decorum of
judicial proceedings that the judge is seeking to uphold.=
Allen, supra, at 344; see also Trial of Christopher Layer, 16
How. St. Tr., at 99 (statement of Mr. Hungerford) (>[T]o have
a man plead for his life= in shackles before >a court of justice,
the highest in the kingdom for criminal matters, where the
king himself is supposed to be personally present= undermines
the >dignity of the Court).= @ Deck v. Missouri, 544 U.S. at __,
161 L. Ed. 2d at 964, 125 S. Ct. at 2013.
These concerns clearly underscore the critical differences between
prison garb and physical restraints. For this reason, Hyche=s reliance
-24-
on Estelle is not persuasive as the case is not truly relevant to the
question presented in Hyche. Finally, the court in Hyche did not
address plain error in any way.
This court=s more recent opinion in Buss certainly does not follow
the analysis set forth in Hyche. In Buss, as I noted previously, we
rejected the defendant=s claim of improper shackling, but in so doing,
we eschewed the State=s claims of waiver and decided the question on
its merits. Our opinion did not cite to Hyche, but instead cited to an
appellate court decision which found plain error in the unjustified use
of restraints at trial even though the defendant had failed to include
the issue in his post-trial motion.
After reviewing our precedents, I find the Staley court=s refusal to
subject the error to a harmless-error analysis to be important to
today=s discussion regarding the second prong of the plain error rule.
In essence, the court=s refusal to predicate a reversal on actual
prejudice in Staley reveals that the court was more concerned with
the error=s ramifications on the proceedings as a whole. As I noted
previously, in Staley, the defendant was not tried by a jury, but by a
judge. Surely a judge understands the presumption of innocence and
would not equate the presence of restraints on a defendant with that
defendant=s guilt of the charged crime. Yet, this court still reversed
despite this fact and without a showing of prejudice because unjust
shackling jeopardized more than the value and protection of the
presumption of innocence. It also Ademeans our justice for an accused
without clear cause to be required to stand in a courtroom in
manacles or other restraints while he is being judged.@ (Emphasis
added.) Staley, 67 Ill. 2d at 37. Thus, the error did not just affect the
defendant=s substantial rights, it seriously affected the fairness,
integrity and public reputation of the judicial proceedings and it was
the systemic effect on the trial proceedings as a whole that warranted
the new trial in Staley. If this is so, then why are not these same
concerns, which clearly are present in all restraint-without-manifest-
cause cases, not enough to satisfy the second prong of our plain error
rule? As this court noted in People v. Blue, 189 Ill. 2d 99, 138 (2000),
Aprejudice to a defendant=s case is not the sole concern that drives our
analysis of defendant=s appeal.@ We further recognized in Blue that
when a defendant=s right to a fair trial has been denied, Athis court
must take corrective action so that we may preserve the integrity of
the judicial process.@ Blue, 189 Ill. 2d at 138. In so doing, we pointed
-25-
specifically to the second prong of the plain error rule:
ATo determine whether defendant=s right to a fair trial has
been compromised, we employ the same test that this court
uses whenever it applies the second prong of the plain error
test. 134 Ill. 2d R. 615(a). We ask whether a substantial right
has been affected to such a degree that we cannot confidently
state that defendant=s trial was fundamentally fair. ***
*** [W]hen an error arises at trial that is of such gravity
that it threatens the very integrity of the judicial process, the
court must act to correct the error, so that the fairness and the
reputation of the process may be preserved and protected.@
Blue, 189 Ill. 2d at 138.
I note that these concerns echo the United States Supreme Court=s
observations about the importance to the criminal justice system of
maintaining dignified proceedings in which defendants are treated
respectfully. Contrary to the court=s assertions, it today is not
Afollow[ing] the strict application of [the plain error] doctrine as
recently set forth in Herron@ (slip op. at 15), rather it is corrupting the
second prong of the rule by requiring defendant to establish that he
was specifically prejudiced even though the rule itself does not
require a showing of prejudice.
In light of the above, it is unclear to me how this defendant=s
failure to raise this matter in the posttrial motion transforms what
would have been a due process violation not subject to a harmless
error analysis into an error that now requires a showing of actual
prejudice in order to warrant relief. To the extent that the court finds
Estelle v. Williams relevant to this issue (slip op. at 10). I strongly
disagree. As I discussed above, in Estelle, the issue before the
Supreme Court was whether an accused who is compelled to wear
identifiable prison clothing at his trial by a jury is denied due process
or equal protection of the laws. In addressing this issue, the Court
acknowledged that the Aparticular evil@ in these types of cases is
Acompelling a defendant, against his will, to be tried in jail attire.@
Estelle, 425 U.S. at 507, 48 L. Ed. 2d at 133, 96 S. Ct. at 1694-95.
However, the Court noted that case law showed that it was Anot an
uncommon defense tactic to produce the defendant in jail clothes in
the hope of eliciting sympathy from the jury@ especially in Texas,
where the defendant had been tried. Estelle, 425 U.S. at 508, 48 L.
-26-
Ed. 2d at 133, 96 S. Ct. at 1695. For this reason, the Court found that
it was necessary for a defendant to register an objection to the jail
attire before the trial judge so as to show the lack of compulsion.
Unlike the Court in Estelle, I can point to no case law which reveals
that it is a common defense tactic to produce a defendant in restraints
in the hope of eliciting sympathy from the jury. I further note that the
Court in Estelle in no way likened appearing before the jury in jail
attire with the use of physical restraints. In fact, the Court pointed out
that the decision to have a defendant appear in jail attire is one that
belongs to defense counsel, not the trial judge. 2 In contrast, case law
makes clear that the decision to use restraints at trial lies solely in the
discretion of the trial judge. A careful reading of Estelle thus
demonstrates that it provides little guidance to the question presented
2
The court Areject[s] the dissent=s attempt@ (slip op. at 11) to
distinguish Estelle. The court=s rejection is made without any real
discussion of the salient points of the United States Supreme Court=s
analysis as it fails to discuss the importance the invited-error doctrine
had on the United State Supreme Court=s analysis in refusing to
excuse the defendant=s procedural default.
-27-
in the case at bar. 3
I believe that in order to determine whether the second prong of
the plain error rule is satisfied in this case, it is essential for us to
evaluate the general characteristics of a stun belt, especially in this
case because it appears from the trial judge=s remarks that he believed
that such a restraint was preferable to handcuffs or shackles. I believe
we must assess what kind of impact a restraint such as an electronic
stun belt has on a defendant=s trial rights, particularly those rights that
have been traditionally recognized as having the most potential to be
affected by the use of restraints at trial (i.e., the presumption of
innocence, the right to consult with counsel, and the maintenance of
dignity in the judicial process), and whether that impact results in
fundamental unfairness or causes a severe threat to the fairness of the
trial such that the second prong of our plain error rule is implicated.
To answer these questions, I look to the same opinions from other
3
I would further note that in Estelle there was no objection made at all
during the proceedings, which strengthened the Court=s conclusion that the
defendant chose to wear the jail attire as part of some trial strategy. In this
case, it is clear that an objection was made to the wearing of the stun belt by
defense counsel, who indicated that he preferred that defendant not wear the
belt. The record indicates that counsel=s request was denied by both a court
officer and the trial judge, who stated that the device would remain on
defendant. This type of exchange made on the record is enough in my view
to establish that defendant was Acompelled@ to wear this restraint during this
trial. Thus, I believe this record sufficiently establishes the element of
Acompulsion@ that the United States Supreme Court found wanting in
Estelle.
-28-
jurisdictions where this issue has been previously addressed that my
colleagues cite in their opinion.
With respect to the presumption of innocence, courts have
recognized that they must Aguard against practices that unnecessarily
mark the defendant as a dangerous character or suggest that his guilt
is a foregone conclusion.@ Wrinkles v. State, 749 N.E.2d 1179, 1193
(Ind. 2001) (and cases cited therein). In this case, the State claims
that the electronic stun belt was not visible to the jury. The record,
however, does not reflect that the belt was invisible. Indeed, the belt
is described in the record as a Afairly noticeable object.@4 The fact that
the belt is, in fact, somewhat noticeable has been a source of concern
to the Eleventh Circuit Court of Appeals, which has stated that
Aif the stun belt protrudes from the defendant=s back to a
noticeable degree, it is at least possible that it may be viewed
by the jury. If seen, the belt >may be even more prejudicial
than handcuffs or leg irons because it implies that unique
force is necessary to control the defendant.= [Citation.]@
Durham, 287 F.3d at 1305.
Moreover, the record here establishes that the bulge from the belt was
noticeable enough to cause the trial judge to break from the usual trial
protocol and have defendant preseated on the witness stand outside
the presence of the jury. Thus, the use of the stun belt in this case
necessitated the trial judge to treat defendant, upon his testifying,
differently from the other witnesses who testified for the State at trial.
Police officers Breen, Reid, Jensen, and Proschaska, in addition to
auto yard owner Bill Clemmons, all walked up to the witness stand
and were sworn in as witnesses in the presence of the jury, as is
usually done in all criminal cases. Such things may mean little to
those of us trained in the law, but jurors are not so trained and may
well attach undue significance to such discrepancies. The disparate
treatment of defendant from other witnesses who are not on trial
4
It appears that electronic stun belts are not undetectable or invisible. In
United States v. Durham, 287 F.2d 1297, 1305 (11th Cir. 2002), the court
noted that the Abelt protrudes some three inches from the wearer=s back.@ In
State v. Flieger, 91 Wash. App. 236, 242, 955 P.2d 872, 874 (1998), the
electronic restraining device in use was so noticeable that it piqued jurors=
curiosity about what the device was.
-29-
Amight have a significant effect on the jury=s feelings about the
defendant@ (see Illinois v. Allen, 397 U.S. 337, 344, 25 L. Ed. 2d 353,
359, 90 S. Ct. 1057, 1061 (1970)) and may cause jurors to believe
that the difference in treatment is somehow related to defendant=s
status as a defendant. Thus, the Eleventh Circuit Court of Appeals=
acknowledgment, with respect to this facet of the due process inquiry,
that A[t]he use of a stun belt as a security device undoubtedly raises
some concern about possible prejudice to the defendant, and this is a
concern that needs to be considered before the device is imposed on a
defendant@ (Durham, 287 F.3d at 1305) rings especially true in this
case. 5
Notwithstanding the above, the courts that have addressed this
issue are more concerned with the electronic stun belt=s potential to
Adisrupt a different set of a defendant=s constitutionally guaranteed
rights.@ Durham, 287 F.3d at 1305; see also People v. Mar, 28 Cal.
4th 1201,1227, 52 P.3d 95, 112, 124 Cal. Rptr. 2d 161, 181 (2002)
(acknowledging that the use of an electronic stun belt posed a
significant risk of impairing a defendant=s ability to participate and
assist in his or her defense); Wrinkles, 749 N.E.2d at 1194 (noting
that the stun belt, even if not activated, has the Achilling effect@ of
Acompromising the defense@). In order to adequately appreciate the
concerns raised by these courts with respect to this set of rights, it is
necessary to understand how the electronic stun belt works.
5
The court accuses me of speculating about the effect that this
discrepancy had on the jury. I note that the court indulges in speculation
itself when it states that the discrepancy did not affect the jury. This misses
the point. One should not have to resort to speculation to appreciate that
what occurred at trial raised the danger of prejudice, which in restraint
cases, is what courts are supposed to be guarding against.
-30-
In his brief, defendant reiterates the appellate court=s finding that
the belt worn by defendant was the same type of belt described in
another case from the Third District of our appellate court. According
to defendant, the belt, when activated, delivers a 50,000 volt shock to
the wearer which lasts for approximately eight seconds. The shock
would knock the wearer to the ground and would incapacitate the
wearer for 45 minutes. At oral argument, however, the State
maintained that defendant could not point to the description in the
Martinez case to argue against the use of the belt in his own case. I
find the State=s argument particularly unpersuasive since the State
does not deny defendant=s description of the belt nor does it attempt
to otherwise enlighten this court about the belt in any meaningful
way. The State, in its brief, does not once describe the device used in
this case, yet argues nonetheless that its use at this trial should not be
considered prejudicial in any way. The State=s amicus, the sheriff of
Will County, represented by the State=s Attorney of Will County,
speaks of his interest in Apreserving the ability to use a stun belt as a
security measure at trial,@ but tells us little about the characteristics of
the restraining device he advocates. The lack of such information
from the sheriff is even more troubling since the record makes clear it
was the Will County sheriff who insisted on the use of the electronic
stun belt in this case. 6
6
The record reveals that when defendant=s counsel raised the issue of
removing the belt, the first person to respond was the court officer, who
stated ANo@ before the trial judge could even speak. The sheriff=s position on
electronic stun belts was discussed in People v. Martinez, 347 Ill. App. 3d
1001 (2004), and I take judicial notice of the fact of the following, taken
from the appellate court=s decision in that case:
AThe [trial] court added that it would not >tell the Sheriff how to
run his jail.= The judge elaborated: >[Jail officials] tell me now that
it is standard operating procedure, even if it=s a [sic] 80-year-old
lady who is in custody with the cuffs off and going to trial on a
Class 4 Felony, it=s [the stun belt] worn in court now. And I am
not going to change the Sheriff=s Department=s policy.= @ Martinez,
347 Ill. App. 3d at 1003.
I point out that the trial judge in Martinez was the same trial judge who
presided over defendant=s trial in this case. I note that the court, in today=s
opinion, refers to other cases arising from the Third District, and Will
County in particular. Thus, it appears that the sheriff of Will County has
-31-
In any event, descriptions of the electronic belt can be readily
found in opinions rendered in courts which have closely examined
this issue. The following description is fairly representative:
AAs the Court of Appeal explained: >Stun belts are used to
guard against escape and to ensure courtroom safety. This
device, manufactured by Stun-Tech, is known as the Remote
Electronically Activated Control Technology (REACT) belt.
The type of stun belt which is used while a prisoner is in the
courtroom consists of four-inch-wide elastic band, which is
worn underneath the prisoner=s clothing. This band wraps
around the prisoner=s waist and is secured by a Velcro
fastener. The belt is powered by two 9-volt batteries
connected to prongs which are attached to the wearer over the
left kidney region. ***
>The stun belt will deliver an eight-second, 50,000 volt
electric shock if activated by a remote transmitter which is
controlled by an attending officer. The shock contains enough
amperage to immobilize a person temporarily and cause
muscular weakness for approximately 30-45 minutes. The
wearer is generally knocked to the ground by the shock and
shakes uncontrollably. Activation may also cause immediate
and uncontrolled defecation and urination, and the belt=s
metal prongs may leave welts on the wearer=s skin requiring
as long as six months to heal. An electrical jolt of this
magnitude causes temporary debilitating pain and may cause
some wearers to suffer heartbeat irregularities or seizures.=
established a general, blanket policy of restraining all felony prisoners with
electronic stun belts without regard for particularized circumstances and
clearly not on the case-by-case basis that this court required for imposition
of restraints in Boose and Staley. The sheriff=s actions in this regard appear
to run afoul of the rule that it is the trial judge who traditionally exercises
his or her discretion in maintaining order in the trial courtroom.
-32-
[Citation.]@ Mar, 28 Cal. 4th at 1214-15, 52 P.3d at 103, 124
Cal. Rptr. 2d at 171.
See also Wrinkles, 749 N.E.2d at 1193 (reciting same general
description). Given these characteristics, a number of courts have
been concerned about the effect such devices can have on a
defendant=s ability to assist counsel and participate in the defense. For
example, the Eleventh Circuit Court of Appeals was particularly
troubled about the adverse impact the device can have on a
defendant=s sixth amendment and due process rights to be present at
trial and participate in his defense:
AWearing a stun belt is a considerable impediment to a
defendant=s ability to follow the proceedings and take an
active interest in the presentation of his case. It is reasonable
to assume that much of a defendant=s focus and attention
when wearing one of these devices is occupied by anxiety
over the possible triggering of the belt. A defendant is likely
to concentrate on doing everything he can to prevent the belt
from being activated, and is thus less likely to participate
fully in his defense at trial. We have noted that the presence
of shackles may >significantly affect the trial strategy [the
defendant] chooses to follow.= [Citation.] A stun belt is far
more likely to have an impact on a defendant=s trial strategy
than are shackles, as a belt may interfere with the defendant=s
ability to direct his own defense.@ Durham, 287 F.3d at 1306.
Similarly, the Supreme Court of California has acknowledged that Ait
is by no means clear that the use of a stun belt upon any particular
defendant will, as a general matter, be less debilitating or detrimental
to the defendant=s ability fully to participate in his or her defense@
than would be the use of the more traditional methods of restraint,
such as handcuffs or shackles. Mar, 28 Cal. 4th at 1226, 52 P.3d at
111, 124 Cal. Rptr. 2d at 181. On the contrary, the court warned that
A[t]he psychological effect of wearing a device that at any
moment can be activated remotely by a law enforcement
officer (intentionally or accidentally), and that will result in a
severe electrical shock that promises to be both injurious and
humiliating, may vary greatly depending upon the personality
and attitude of the particular defendant, and in many instances
may impair the defendant=s ability to think clearly,
-33-
concentrate on the testimony, communicate with counsel at
trial, and maintain a positive demeanor before the jury.@ Mar,
28 Cal. 4th at 1226, 52 P.3d at 111, 124 Cal. Rptr. 2d at 181.
In this vein, the court was also deeply troubled by claims made in
promotional literature from manufacturers of the belts that touted the
belt=s ability Ato provide law enforcement with >total psychological
supremacy ... of potentially troubling prisoners.= @ Mar, 28 Cal. 4th at
1226, 52 P. 3d at 111, 124 Cal. Rptr. 2d at 181. Other courts have
voiced similar concerns. See Hawkins v. Comparet-Cassani, 33 F.
Supp. 2d 1244, 1262 (C.D. Cal. 1999) (stating that Aa defendant may
be reluctant to object or question the logic of a rulingBmatters that a
defendant has every right to do@); Wrinkles, 749 N.E.2d at 1195-96
(acknowledging that psychological impact of belt on a defendant can
compromise the defense).
Finally, I note that courts have found that stun belts possess Athe
potential to be highly detrimental to the dignified administration of
criminal justice.@ Durham, 287 F.3d at 1306. For example, the
California Supreme Court acknowledged a Adisturbing number of
accidental activations@ of stun belts across the country. The court
specifically pointed to accidental activations recorded in judicial
opinions from Idaho, Nevada, Ohio, and California. Mar, 28 Cal. 4th
at 1228, 52 P.3d at 112-13, 124 Cal. Rptr. 2d at 182-83 (collecting
cases). 7 In the same opinion, the court expressed concern over the
fact that the device can also be distracting, specifically referencing a
quote from a stun belt use trainer that, Aat trials, people notice that the
defendant will be watching whoever has the monitor.@ Mar, 28 Cal.
4th at 1226-72, 52 P.3d at 111, 124 Cal. Rptr. 2d at 181. These
examples demonstrate how this kind of device can be detrimental to
dignified proceedings in a criminal trial.
In light of the foregoing, I believe that stun belts plainly raise
many of the same constitutional concerns that this court recognized in
7
During the State=s presentation at oral argument, Justice Garman asked
whether actions on the part of the defendant can Atrigger@ the belt. The
assistant Attorney General answered that only the Adeputy@ holds the button,
implying that there could not be any type of accidental activation. These
recorded instances of accidental activation in other jurisdictions
demonstrate that accidents do in fact occur.
-34-
Boose and Staley, though in somewhat different ways. Although a
stun belt may be less visible than devices such as handcuffs or
shackles, the belt imposes a more substantial burden on the ability of
a defendant to participate in his own defense and to confer with
counsel during trial than do other devices. The stun belt also poses a
serious threat to courtroom decorum and dignity. Because of the
importance of these rights to our criminal justice system, the
unjustified use of an electronic stun belt should result in plain error.
Given the psychological effects the stun belt has on its wearer, as
identified by courts in other jurisdictions, I am unwilling to hold, as
my colleagues do, that because of defendant=s procedural default,
defendant must establish prejudice with specific reference to the
record in order to warrant relief on appeal. Such a holding is
inconsistent with Boose and Staley, which do not require that specific
prejudice be shown.
Moreover, I am puzzled by the court=s holding that defendant here
Ahas not shown that his presumption of innocence, ability to assist
counsel, or the dignity of the proceedings was compromised.@ Slip
op. at 10. How exactly is a defendant to show that his presumption of
innocence was compromised? What type of record evidence would
support a finding of a compromised presumption of innocence? It is
ironic that it is I, writing in my dissent, who has demonstrated with
actual citation to the record how the use of the stun belt in this case
affected the normal procedure of this criminal trial, where the record
reveals that defendant was preseated in the witness box outside the
presence of the jury. My colleagues= response to the very type of
record evidence that they demand throughout their opinion is that I
am speculating about what kind of effect that had on the jury. Slip op.
at 14. I sincerely hope that my colleagues are not insinuating that an
activation of the stun belt must occur before a defendant=s
presumption of innocence will be deemed Acompromised.@ The court
intimates that, because defendant Awas before the jury for two days@
with Ano objection@ and without Aany apparent difficulty consulting
with his counsel,@ all was fine. As a reviewing court, we are left with
a cold transcript of the proceedings from which we are unable to
glean nuances in tone, demeanor, and appearance. That, of course, is
why we defer to findings made by the trier of fact who, having been
present at the trial, is in a better position to assess these particular
things. For these reasons, I am unwilling to assume, as my colleagues
-35-
appear to, that because the record does not reflect any overt signs of
nervousness or distress on defendant=s part over the use of the belt,
defendant did not experience any anxiety or suffer any prejudice. All
people react to stress differently. The record may not reflect anxiety
on a defendant=s part because he or she may not manifest anxiety in
an outwardly discernable manner, e.g., nervous twitching, stuttering,
shaking, and the like. Instead, a defendant may be the type of
individual who internalizes anxiety in ways that are not visible to
observers. Similarly, a defendant=s lack of outcry to the trial judge or
his counsel does not necessarily establish a comfort level with the
stun belt or acquiescence in its use. Rather, such a defendant may be
afraid of saying anything to anyone, lest an objection lead to
activation of the stun belt.
The court=s resolution of this matter reveals that it has overlooked
the most glaring problem that occurs when a stun belt is placed upon
a criminal defendant without a showing a manifest need. A defendant
has the right to be free from restraint at trial because, as courts have
long recognized, restraints unduly erode the trial protections afforded
to a defendant by the Constitution. It is only when a defendant
misbehaves or poses a great danger through past behavior that those
trial protections are rightfully diminished. Such a defendant=s trial
protections are less, but that is constitutionally permissible because
just cause has been shown. The unjustified imposition upon a
criminal defendant of a remote-controlled electronic restraintBa
device which is designed to give Apsychological supremacy@ over its
wearer to the person who holds its activation buttonBposes a Asevere
threat@ to the fairness of the proceedings. This results in a benefit to
the prosecution because the defendant unjustifiably enjoys lesser trial
protections through no fault of his own. It is the prosecution, not the
defense, which benefits when a defendant, without just cause, isBfor a
lack of better descriptionBpsychologically neutralized, e.g., his
attention focused on the stun belt and not the trial, his demeanor
affected by trying not to be shocked, and the like. Such a defendant
stands at a disadvantage at trial, and the proceedings become tainted.
This is precisely the kind of error that the second prong of the plain-
error rule seeks to guard against. It is the type of error that Aerode[s]
the integrity of the judicial process and undermine[s] the fairness of
the defendant=s trial.@ See Herron, 215 Ill. 2d at 186. For these
reasons, I believe that the second prong of the plain-error rule has
-36-
been satisfied in this case.
Frankly and with all due respect, I have difficulty understanding
the court=s treatment of defendant=s argument in this case. The court
stresses often in its opinion that it is not Aaddress[ing] the propriety of
using stun belts at a criminal trial@ and that the Ause of such restraints
in Illinois courts *** is not raised in this case.@ Slip op. at 10.
However, that issue is clearly and necessarily raised in this case.
Defendant argues that the use of electronic stun belts is so inherently
prejudicial that it served to undermine the basic trial rights he has
been afforded under our Constitution. On some level, the court must
be concerned with the use of electronic stun belts because it does
indeed hold that to restrain a defendant with such a device without
first determining whether the Boose test is met violates due process.
The court holds that Boose and Staley apply with equal force in
electronic stun belt restraint cases. I point out that Boose and Staley
allow for restraints to be used in cases where manifest need has been
established on the record. Therefore, if Boose and Staley apply with
equal force to stun belt restraints, as the court holds, then, ipso facto,
electronic stun belts can be used in Illinois courtrooms consistent
with the teachings of Boose and Staley. Given this ruling, I simply do
not understand why the court states that today=s opinion does not
address the use of stun belts at a criminal trial. I have similar
difficulties understanding the court=s holding that putting a defendant
in a restraint like the one at issue here, without first establishing just
cause, constitutes a violation of due process. Why does the court rule
in this manner? According to our opinions in Boose and Staley, the
main concern the courts had was on the magnitude of the error to the
proceedings on a whole and not on any actual prejudice to a
defendant. It was that concern which prompted those courts to hold
that the error violated due process. None of the defendants in Boose
or Staley pointed to specific instances in the record where the
presumption of innocence, the right to participate and assist at trial
and the right to a dignified proceeding were actually compromised.
Instead, it was this court that was concerned with the effect the
unjustified use of the restraints would have on the integrity of the
judicial proceedings because the restraints had the potential to
compromise those important trial rights. Nevertheless, today=s
opinion, while stating that a due process violation occurred here,
demands actual proof of an impact on those rights even though, in our
-37-
earlier cases, the due process violation was not predicated upon a
finding of actual prejudice. Defendant=s procedural default does not
lessen the due process violation since that violation, under Boose and
Staley, is not dependent on actual prejudice. 8
The court=s opinion also appears to be inconsistent. At the outset
of its analysis, the court states that although the trial court never
referred to the Asecurity device@ as an Aelectronic stun belt,@ it, like
the appellate court below, is Aconfident@ in its assessment that Ait was
indeed that type of restraining device.@ Slip op. at 3. The court then
states that its finding is Aespecially probable@ because in another
recent Will County circuit court case, People v. Martinez, the State
asked the appellate court to validate the AWill County Sheriff
department=s >standard operating procedure of requiring all felony
defendants to wear a stun belt while appearing in court.= @ Slip op. at
3. The court also cites to other cases currently pending before this
court involving the use of stun belts in Will County. Thus, it appears
that, from that point of its opinion on, the court is operating under the
assumption that electronic stun belts are at issue in this case. The
court cites to a number of cases from outside of our jurisdiction
which hold that electronic stun belts are restraining devices, the use
of which is subject to the same restrictions as shackles. Slip op. at 5.
8
The court=s treatment of this issue indicates that but for counsel=s failure
to include the matter in defendant=s posttrial motion, defendant=s challenge
to the use of the stun belt would have been resolved differently. See slip op.
at 16 (noting Boose, Staley, Martinez, and Deck all present a Adifferent
factual situation which allows for a per se finding of reversible error which
is not applicable under the facts presented in this case@). In light of this,
defendant may have a constitutional claim of ineffective assistance of trial
counsel cognizable under our Post-Conviction Hearing Act.
-38-
The court further holds that, in this case, the trial court=s failure to
follow the procedures set forth in Boose before ordering that
defendant continue to wear an electronic stun belts constituted a due
process violation. Slip op. at 7. Notwithstanding all of the above, the
court faults me for my use of Ainformation outside the record and
cases outside our jurisdiction to speculate as to the type and effect of
the stun belt worn in this case and to proselytize for a ban on the use
of stun belts in Illinois.@ Slip op. at 12. Clearly, the court has
misapprehended my dissent as much as it has misapprehended the
reasoning behind Boose and Staley. Nowhere in this dissent do I
Aproselytize for a ban on the use of stun belts@ as the court
erroneously charges. As stated below, I believe that stun belts can be
used in our courtrooms at the discretion of our trial judges after
application of the factors identified in Boose and additional factors
associated with the unique nature of this particular restraining device.
The court then states that Athere is nothing of record to show that the
type of electronic device worn in the nonprecedential cases cited by
the dissent are in any way similar to the device worn by defendant.@
Slip op. at 12. If the court is, in fact, concerned with this defendant=s
lack of establishing on the record the specific type of electronic stun
belt that is at issue in this case, then I do not understand why the
court accepted the speculation of the appellate court that the security
device was an electronic stun belt in the first place. Why does the
court look to Anonprecedential@ Third District appellate court cases in
order to determine the standard operating procedure of the Will
County sheriff? Taking the court at its own word, I do not understand
why the court takes note of the actions of the Will County sheriff in
this case, but then does not take note of the actions of other Will
County defendants. If the actions of the other Will County defendants
are of no moment in this case, then the actions taken by the Will
County sheriff in other cases should likewise be of no moment in this
case. I do not understand the basis on which the court decides what
facts outside the record can be relied upon in this case and what facts
outside the record cannot be relied upon. I also have similar
difficulties understanding why, if my colleagues are so troubled by
the fact that the type of electronic restraint involved in this case is
Anot even known,@ they would issue an opinion which establishes as
precedent that electronic stun belts are devices that are the equivalent
of physical restraints and must comply with Boose. How can the
-39-
court rule that such a restraint is the equivalent of something else if
the court does not take the time to understand how the device works
and refuses to look to other opinions from other jurisdictions which
have set forth this necessary information? In my view, it is
appropriate and, indeed necessary, to look to other cases to
understand what these devices are and how they work in order to
address defendant=s argument that the use of these restraints
compromised his trial such that the second prong of the plain error
test is satisfied. The court=s criticism of my use of cases from outside
the jurisdiction (some of which the court itself cites in the body of its
opinion) in order to assess defendant=s plain error argument is simply
not justified.
III
Despite its holding that a trial court must follow the procedures
set forth in Boose before ordering that defendant continue to wear an
electronic stun belt at trial and the failure to do so results in a due
process violation, the court believes that its opinion does not have the
effect of countenancing the continued use of stun belts in Will
County or any other county in this state. See slip op. at 6. I do not
believe that the court=s opinion will be read in the narrow manner it
believes, especially when the unjustified use of the stun belt in this
case is deemed inconsequential by a majority of this court. However,
the use of such devices raises significant questions that generally
have not been considered by trial courts when addressing the more
traditional forms of trial restraints. Today=s opinion fails to consider
these questions as well, despite its recognition that the Boose factors
apply to stun belts. I note that the court does not acknowledge the
potential health risks that are associated with the use of stun belts.
The California Supreme Court has noted that
Athe manufacturer of the REACT stun belt and regular
users of the device apparently recognize that the stun belt
poses special danger when utilized on persons with particular
medical conditions, such as serious heart problems.@ Mar, 28
Cal. 4th at 1229, 93 P.3d at 113, 124 Cal. Rptr. 2d at 183.
The court also pointed to a statement from the assistant director of the
Federal Bureau of Prisons, which instituted a policy not to use stun
belts on (i) pregnant female inmates, (ii) inmates with heart disease,
-40-
(iii) inmates with multiple sclerosis, (iv) inmates with muscular
dystrophy, and (v) inmates who are epileptic. Mar, 28 Cal. 4th at
1229, 93 P.3d at 113, 124 Cal. Rptr. 2d at 183. Based on these facts,
the court warned Awhen the risk of accidental activation is
considered, use of stun belt without adequate medical precautions is
clearly unacceptable.@ Mar, 28 Cal. 4th at 1229, 93 P.3d at 113, 124
Cal. Rptr. 2d at 183. I share these concerns.
Finally, today=s opinion fails to acknowledge the importance of
adequate training for those officers of the court who control the
device at trial. This is especially necessary in view of the stun belt=s
troubling potential for accidental activation. I believe that the trial
court should make an inquiry concerning the amount of training the
officer in charge of the activation button has received before allowing
the device to be used in the courtroom.
In light of the concerns regarding health risks and accidental
activations, I agree with those courts that hold that Aif a stun belt is to
be used to restrain a particular defendant, a court must subject that
decision to careful scrutiny. This scrutiny should include addressing
factual questions related to its operation, the exploration of
alternative, less problematic methods of restraint, and a finding that
the device is necessary in that particular case for a set of reasons that
can be articulated on the record.@ Durham, 287 F.3d at 1309. See also
Mar, 28 Cal. 4th at 1230, 52 P.3d at 113-14, 124 Cal. Rptr. 2d at 183-
84 (holding that trial court can approve use of stun belt only after
traditional restraint factors are met, the belt is the least restrictive
device that will serve the court=s security interest and only upon
determination that the use of the belt is safe and appropriate under the
particular circumstances). Consistent with today=s application of the
Boose factors to cases involving electronic stun belt restraining
devices, I would also require that the any trial judge who employs the
use of electronic stun belt restraining devices in his courtroom make
specific findings on the record with respect to the defendant=s medical
history and the training given to the deputies before allowing such a
method of restraint to be used. Given this position, I fail to see how
the court can accuse of me of using this dissent Ato proselytize for a
ban on the use of stun belts in Illinois.@ Slip op. at 12.
IV
-41-
As the foregoing demonstrates, I disagree strongly with the
court=s treatment of this issue of first impression. The opinion
demonstrates that a majority of the court fails to appreciate the
significant and profound impact that this relatively new means of
restraint has a defendant=s trial rights. I respectfully dissent.
JUSTICES McMORROW and KILBRIDE join in this dissent.
-42-