Commonwealth v. Conley

STUMBO, Justice,

dissenting.

With all due respect to the majority, this case does not present an abstract constitutional argument. A cursory review of the record makes it clear that the admonition relied upon by the majority to offset the prejudicial effect of the Appellee’s shackling was ineffective at best. The comments of the jurors elicited during the voir dire demonstrate this:

• I think I would have to question the defendant being here in leg chains, because my mother always taught me where there’s smoke there’s got to be some fire.

• It kindly bothers me just a little.

• It does me too. If he’s innocent, why’s he got the leg irons on?

• I would try not to let it affect me, but I don’t know

• I don’t think (the leg irons should have a bearing) but if he’s innocent why’s he got the leg irons on?

(When asked by defense counsel “So you’ve got a suspicion in your mind at this point that he must be guilty already: am-I correct in saying that?”)

• Or, somebody else thinks he is.

While it is true that the trial court is vested with considerable discretion in this area, historically we have permitted the shackling of defendants within the view of the jury only in the most “exceptional cases, in cases where the trial courts appeared to have encountered some good grounds for believing such defendants might attempt to do violence or to escape during their trials.” Tunget v. Commonwealth, Ky., 198 S.W.2d 785, 786, 303 Ky. 834, 836 (1946). The defendant in the Tunget case had been serving a life sentence for murder when he somehow obtained a gun, locked four guards in his own cell, shot and killed the assistant warden, and shot at two other guards in his attempt to escape. Id. at 786, As the Court noted in reviewing those circumstances, “[cjonfinement had not curbed him, courtroom solemnity had not cowed him, armed guards had neither daunted nor discouraged him.” The circumstances of the case at bar bear little resemblance to those of Tunget.

In the years since the Tunget case, the United States Supreme Court has written on this issue several times. In Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Court held that the use of shackles is far more prejudicial than placing additional security personnel in the courtroom because of “the wider range of inferences that a juror might reasonably draw from the officers’ presence_” Id. at 569, 106 S.Ct. at 1346. The inferences thought reasonable by the Court were to guard against disruptions from either outside or inside the courtroom, as well as the need to separate the defendant from the community at large. Id. “Our society has become inured to the presence of armed guards in most public places; they are doubtless taken for granted so long a their numbers or weaponry do not suggest particular official concern or alarm.” Id.

The Court in Holbrook also noted that there can be a greater danger of prejudice if the jury-is aware that the security arrangements for the trial are unusual or extraordinary. Id. at 571,106 S.Ct. at 1347 (citations omitted). Here, the court’s repeated admonitions, rather than curing potential prejudice, served instead to make the jury aware that Appellee’s shackles were not the norm.

Similarly, in Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the Court commented that “to contemplate such a technique [as shackling], much less see it, arouses feeling that no person should be tried while shackled and gagged except as a last resort. Not only is it possible that the sight of shackles and gags might have a significant effect on the jury’s feelings about the defendant, but the use of this technique is itself something of an affront to the very dignity and decorum of judicial proceedings that the judge is seeking to uphold.” Id. at 344, 90 S.Ct. at 1061.

In the instant case, Appellee had attempted an escape during the arraignment, some seven months prior to the trial. He had been held in custody pending trial and the order directing his shackling was ordered sua sponte by the court. The court’s order indicated that it had considered additional security guards but felt that the restraints would be less prejudicial. There is no indication that the trial court attempted to extract a promise of good behavior from Appellee, nor is there any indication in this record that Appellee continued to behave in any way disruptively during the pretrial detention. No hearing was held prior to the entry of the court’s order.

As the United States Supreme Court stated in Holbrook v. Flynn, “certain practices pose such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny.’ ” Holbrook, 475 U.S. at 568, 106 S.Ct. at 1345 (citations omitted). Although Holbrook involved an unobjected-to requirement that the defendant wear jail clothing during trial, the Court nonetheless held that the circumstances required close scrutiny. Utilizing that standard, I can only conclude that, without more than what is contained in this record, this is not the exceptional case where the physical restraint of the Appellee was the least restrictive means of dealing with Appellee. The trial judge erred when he held that shackling is inherently less restrictive and prejudicial than additional security personnel in the court room. Furthermore, this case is not one of overwhelming evidence of guilt as contended by the Commonwealth. There were no eyewitnesses to the crime and no physical evidence linking Appellee to the burglary. The conviction was based on the testimony of admitted drug users who collaborated on their stories before giving information to the police and who admitted tampering with evidence. I would affirm the decision of the Court of Appeals.

STEPHENS, C.J., and LAMBERT, J., join this dissenting opinion.