No. 3--03--0368

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

The defendant, Peri Allen, appeals from his conviction for burglary in the circuit court ofWill County. The sole issue on appeal is whether it was error for the defendant to be forced towear an electronic security belt as a restraining device at trial. The defendant urges the court tofind error and remand his case for a new trial. For the following reasons, we find that it was errorfor the defendant to be restrained absent an explicit finding of necessity pursuant to People v.Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977), and reverse and remand for a new trial.

FACTS

The State's brief initially claims that the record is insufficient to show that the defendantwas forced to wear a stun belt. The trial record reveals that after defense counsel noticed andasked about a bulge underneath the defendant's shirt, the court stated: "[t]hat's a security device. The deputy has control of it. He does not have shackles on. He does not have handcuffs on. Heis in custody and he is restrained in no other manner whatsoever, so for security purposes wekeep that on him. It is out of view of the jurors. At this time it has been out of view." (emphasisadded).

Despite the fact that the trial court never refers to the "security device" as an electronicstun belt, we feel confident in our assessment that it was indeed that type of restraining device. The State alleges that it is pure conjecture that the defendant was wearing the belt. We believe,however, that it is reasonable to conclude that it was a stun belt. This is especially so since theState, not long ago, asked this court to validate the Will County Sheriff's Department's "standardoperating procedure" of forcing all felony defendants in custody to wear a stun belt whileappearing in court. See People v. Martinez, 347 Ill. App. 3d 1001, 1003, 808 N.E.2d 1089,1090 (2004). In addition, there are two other cases pending before this court involving the use ofelectronic stun belts in Will County. People v. Reyes, No. 3-02-0482, and People v. Johnson,No. 3-02-0402. The State does not suggest what the bulging security device under thedefendant's shirt might have been other than a stun belt.

In any event, the lack of an explicit description of the device on the record will not preventus from reviewing the issue. Even if we were to find the record insufficient to show that he waswearing a stun belt, the record is undoubtedly sufficient to show that he was wearing some sort ofrestraining device. Since Boose applies generally to the restraint of defendants in the courtroom,it would certainly apply to an unspecified "security device," controlled by a deputy, as long as thedevice was meant to restrain the defendant. Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305. That thedevice, whatever its nature, was meant to do just that is beyond debate, based on the record. Wenow address the merits of the case.

The presumption of innocence is central to the administration of criminal justice. In theabsence of exceptional circumstances, an accused has the right to stand trial with the appearance,dignity and self-respect of a free and innocent person. In re Staley, 67 Ill. 2d 33, 37, 364 N.E.2d72, 73 (1977). It jeopardizes the presumption's value and protection and demeans justice for anaccused without clear cause to be required to stand in a courtroom in manacles or other restraintswhile he is being judged. Staley, 67 Ill. 2d at 36, 364 N.E.2d at 73. Furthermore, the restraint ofthe defendant should be avoided because it prejudices the defendant before the jury, hinders theability of the defendant to participate in his own defense, and offends the dignity of the judicialprocess. Boose, 66 Ill. 2d at 265, 362 N.E.2d at 305.

This is not to say that there are no circumstances that require the restraint of an accused.However, a defendant should only be shackled or otherwise restrained at trial upon a showing ofmanifest need for the restraint. Staley, 67 Ill. 2d at 36, 364 N.E.2d at 73. To determine whetherrestraint is appropriate, a court must consider the following factors: 1) the seriousness of thealleged offense, 2) the defendant's temperament and character, 3) the defendant's age andphysical characteristics, 4) the defendant's past record, 5) any past escapes or attempted escapesby the defendant, 6) evidence of a present plan of escape by the defendant 7) any threats by thedefendant to harm others or create a disturbance, 8) evidence of self-destructive tendencies on thepart of the defendant, 9) the risk of mob violence or of attempted revenge by others, 10) thepossibility of rescue attempts by any co-offenders still at large, 11) the size and mood of theaudience, 12) the nature and physical security of the courtroom, and 13) the availability ofalternative remedies. Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at 305. The decision whether torestrain the defendant at trial is left to the discretion of the trial judge and a new trial is onlywarranted if the judge abuses that discretion. Boose, 67 Ill. 2d at 266, 362 N.E.2d at 305 (1977).

In People v. Martinez, we found that an electronic stun belt is no less a restraint thanmanacles or handcuffs. We ruled that before a defendant may be restrained in such a manner, thetrial court must determine whether restraint is necessary using the Boose factors. The trial courtin Martinez did not use the Boose factors in determining whether the restraint was necessary, butrather deferred to the Sheriff Department's standard operating procedure that all felonydefendants in the custody of the department should be restrained with a stun belt while appearingin court. Martinez, 342 Ill. App. 3d at 1004, 808 N.E.2d at 1092. We found that the trial courtcould not abdicate its responsibility to determine the measures necessary to assure courtroomsecurity, and we reversed. Martinez, 342 Ill. App. 3d at 1005, 808 N.E.2d at 1092.

We believe that Martinez is directly on point with respect to the substantive issue. That is,the use of the belt is only justifiable if the court considered and applied the Boose factors infinding a necessity for restraint. The trial court did not use the Boose factors in this case. In fact,the record is devoid of any reasons why the defendant was required to be restrained. Accordingto Martinez, we must reverse the defendant's conviction and remand for a new trial.

However, this case features an additional element not present in Martinez: the fact that thedefendant in this case did not object to the restraint, while the defendant in Martinez objectedvigorously. Martinez, 342 Ill. App. 3d at 1003, 808 N.E.2d at 1090-91. The failure to object toalleged error at trial will ordinarily result in the waiver of the issue on appeal. People v. Enoch,122 Ill. 2d 176, 185-86, 522 N.E.2d 1124, 1129-30 (1988). We must decide, then, whether theerror here was so significant that it warrants plain error review.

Review for plain error is appropriate when the evidence in a case is closely balanced orwhere the error is so fundamental and of such magnitude that the accused is denied a fair trial andremedying the error is necessary to preserve the integrity of the judicial process. People v.Johnson, 208 Ill. 2d 53, 64, 803 N.E.2d 405, 411-12 (2003). In addition, the court will review acase for plain error when the alleged error affects the defendant's substantial rights. (134 Ill. 2dR. 615(a)). A substantial right has been denied when error has affected the proceedings to such adegree that we cannot confidently state that the defendant's trial was fundamentally fair. Peoplev. Keene, 169 Ill. 2d 1, 31-32, 660 NE.2d 901, 916 (1995).

The issue of whether plain error exists in this case is governed by People v. Doss, 347 Ill.App. 3d 418, 807 N.E.2d 697 (2004). In that case, we found plain error, since the defendant wasdenied a fair trial because of the failure of the trial court to conduct the appropriate manifest needanalysis before ordering the defendant to be shackled at trial. Doss, 347 Ill. App. 3d at 428, 807N.E.2d at 705. We find that Doss controls here, and requires that we find plain error. Since wealso have found that Martinez requires reversal, we reverse the defendant's conviction, and ordera new trial.

CONCLUSION

We find that the trial court abused its discretion in requiring the defendant to wear a"security device" without an explicit analysis and finding of necessity, using the factors fromPeople v. Boose. We further find that the defendant has adequately alleged plain error, whichjustifies review despite defendant's failure to object below. We, therefore, reverse the defendant'sconviction.

Reversed.

LYTTON, J., concurs.

HOLDRIDGE, P.J., partially concurs, partially dissents.

I agree with the majority's holding that it was error for the trial court to require thedefendant to wear a security device without an explicit analysis and finding of necessity, using thefactors from People v. Boose. However, I do not agree that the trial court's error necessarilyrequires reversal of the defendant's conviction or remand for a new trial.

Rather, in a situation such as here, where the record is incomplete as to the trial court'sreasoning for physically restraining a defendant, I believe it would be appropriate to remand thematter to the trial court to conduct a hearing wherein the reasons in support of the decision torestrain the defendant may be stated and supported in the record.

In a situation where the record is incomplete as to the trial court's reasoning for physicallyrestraining a defendant, it would be appropriate to remand the matter for a retrospective hearingwhere the reasons for physical restraint of the defendant could be fully articulated. See, Childersv. State, 782 So. 2d 513, 518 (2001) (no formal hearing on the use of physical restraints isnecessary, but where there is a total lack of a record, the decision may be remanded for ahearing); See also, People v. Williams, 36 App. Div. 2d 1018, 321 NYS 2d 463 (1971) (where thefacts relevant to the needs of restraint of defendant are not sufficiently developed at trial, a post-trial hearing should be held on that issue); People v. Reingold, 44 App. Div. 2d 191, 353 NYS 2d978 (1974) (post-trial hearing must be had, wherein evidence should be presented for the recordregarding reasons for restraining the defendant).

I would remand for a hearing to determine whether a decision to restrain the defendantwas appropriate under the factors articulated in Boose. I therefore dissent from the portion of thedisposition that reverses the defendant's conviction.