People v. Allen

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People v. Allen

State: Illinois

Docket No: 99977 Rel

Preview: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 fouryear 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 3637; 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
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).
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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 plainerror 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, 45657 (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 selfrespect 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 82325, 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-manifestcause 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

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.

2

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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 recogn

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