THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. PERI ALLEN, Appellee
No. 99977
Supreme Court of Illinois
June 2, 2006
Rehearing denied September 25, 2006
222 Ill. 2d 340
Appellate court judgment affirmed in part and reversed in part; circuit court judgment reversed.
Robert Agostinelli, Deputy Defender, and Fletcher P. Hamill, Assistant Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.
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 “adequately 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
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: “Apparently 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
“[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 and—
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.
DEFENDANT: Right.
THE COURT: That way they‘ll never see it. All right, bring the jurors in.” (Emphasis added.)
No further mention of the “security 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 “whether 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
Having agreed with the appellate court that defendant was wearing an electronic stun belt, we now examine whether Boose, which generally applies to the “physical 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 “security belt” is not a restraining device that lends itself to due process scrutiny pursuant to Boose, citing Deck v. Missouri, 544 U.S. 622, 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 “prohibit[s] the use of physical restraints visible to the jury absent a trial court determination, in the exercise of
In In re Staley, 67 Ill. 2d 33, 37 (1977), this court stated:
“The 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 “is no less a
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 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
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 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 “for 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 ”Boose 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
” ‘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 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.
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 “was 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 “we 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 at trial.” 354 Ill. App. 3d at 446. Thereafter, the appellate court held that here, as in Doss, defendant had “adequately alleged plain error” which justified its review and also required the reversal of defendant‘s
“The 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 thing—namely, 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: ”Doss did not hold that it is always plain error to shackle a defendant without a Boose hearing. Rather, the shackling
In Herron, 215 Ill. 2d at 187, this court further described the second prong of the plain error test, stating: “In 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 “second 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
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 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 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 “that 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 persua-
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; 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 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, “cited with approval People v. Bennett, 281 Ill. App. 3d 814 (1996)” (222 Ill. 2d at 370 (Freeman, J., dissenting, joined by McMorrow and Kilbride, JJ.)), the Bennett court held “it was plain error for the judge in this case to deny the defense request to have the defendant‘s shackles removed,” when “the only reason the judge gave for refusing the defense motion
Next, we note that in his dissent, Justice Freeman agrees with the majority opinion that the issue presented 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.” 222 Ill. 2d at 361 (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 “the effect of countenancing the continued use of stun belts” in Illinois, simply because we decline to engage in dicta, is unfair at best. 222 Ill. 2d at 389 (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
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 “medical 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
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 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 “presumably 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 posttrial motion; (3) “the 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
Further, we disagree with the dissent‘s claim that this procedure of “preseating” the defendant, because it was dissimilar to that used with previous witnesses, would cause the jury to “attach undue significance to such discrepancies.” 222 Ill. 2d at 377 (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 “trained in the law” (222 Ill. 2d at 377 (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 laypeople, 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 witnesses not on trial ” ‘might have a significant effect on the jury‘s feelings about the defendant’ ” support his theory. 222 Ill. 2d at 366, 377 (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 “the sight of shackles and gags” on that defendant after he displayed conduct which was disorderly, disruptive and disrespect-
Finally, we object to the dissent‘s statement that “the unjustified use of the stun belt in this case is deemed inconsequential by a majority of this court.” 222 Ill. 2d at 389 (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 “semi-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 “affected 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 (“The 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
As this court stated in People v. Blue, 189 Ill. 2d 99, 138 (2000), “[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 “severe 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 (“procedural 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.
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 “stated reasons which prompt due process scrutiny in visible restraint cases—the presumption of innocence, securing a meaningful defense, and maintaining dignified proceedings—may be applied with like force to stun belts which are not necessarily visible to the jury.” (Emphasis added.) 222 Ill. 2d at 346. 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), “apply equally to those defendants who are restrained by means of an electronic stun belt worn under their clothing at trial, and that nothing *** precludes application of due process protections to such cases.” (Emphasis added.) 222 Ill. 2d at 347. The court further holds that a “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 process violation.” 222 Ill. 2d at 349. However, in finding that an error of constitutional proportions has occurred in this case, the court states that it is “not persuaded that such error resulted in fundamental unfairness or caused a ‘severe threat’ to the fairness of defendant‘s trial.” 222 Ill. 2d at 360. 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 “severe threat” to the fairness of the trial. I would hold that
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 222 Ill. 2d at 344), 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. 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
This court has recently acknowledged that the purpose of the doctrine is “to protect the rights of the defendant and the integrity and reputation of the judicial process.” People v. Herron, 215 Ill. 2d 167, 177 (2005),
“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 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
“under 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 “guards 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 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
It has long been recognized that an accused should never be placed in restraints in the presence of the jury “‘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. 622, 629-30, 161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 2012 (2005) (acknowledging that “the 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 629, 161 L. Ed. 2d 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
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 in several different ways. Shackles and gags visible to the jury “might 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 631, 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 “due 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
Noting that an “accused 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 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, “‘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 ” ‘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
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:
“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.” Staley, 67 Ill. 2d at 37.
The court emphasized that in the absence of a showing of manifest need, “which must be established clearly on the record,” an accused “cannot be tried in shackles whether there is to be a bench trial or a trial by jury.”
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 “waived any error by failing to object to his appearance in handcuffs.” Hyche, 77 Ill. 2d at 241. In so holding, this
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 posttrial 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
“The 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 631-32, 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 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 posttrial 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
“To 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. [Citations.]*** [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 “fol-low[ing] the strict application of [the plain error] doctrine as recently set forth in Herron” (222 Ill. 2d at 359), 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 (222 Ill. 2d at 353-54), 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 “particular evil” in these types of cases is “compelling 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 “not 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. Ed. 2d at 133, 96 S. Ct. at 1695.
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
With respect to the presumption of innocence, courts have recognized that they must “guard 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 “fairly 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
“if 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 “might 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 “[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 “disrupt 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 “chilling effect” of “compromising 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.
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,
In any event, descriptions of the electronic belt can
“As 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 to 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. [Citations.]’ ” 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
“Wearing 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 reason
able 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 “it 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
“[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, 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 “to 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 “a defendant may be reluctant to object or question the logic of a ruling—matters 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 “the 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 “disturbing 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, “at trials, people notice that the defendant will be watching whoever has the monitor.” Mar, 28 Cal. 4th at 1226-27, 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 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
Moreover, I am puzzled by the court‘s holding that defendant here “has not shown that his presumption of innocence, ability to assist his counsel, or the dignity of the proceedings was compromised.” 222 Ill. 2d at 353. 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. 222 Ill. 2d at 356-57. 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 “compromised.” The court intimates that, because defendant “was before the jury for two days” with “no objection” and without “any ap
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 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
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 “address[ing] the propriety of using stun belts in any criminal trial” and that the “use [of] such restraints in Illinois courts is *** not raised in this case.” 222 Ill. 2d at 355. 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
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 “security device” as an “electronic stun belt,” it, like the appellate court below, is “confident” in its assessment that “it was indeed that type of restraining device.” 222 Ill. 2d at 345. The court then states that its finding is “especially probable” because in another recent Will County circuit court case, People v. Martinez, the State asked the appellate court to validate the “Will County sheriff‘s ‘standard operating procedure, of requiring all felony defendants in custody to wear a stun belt while appearing in court.‘” 222 Ill. 2d at 345. 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. 222 Ill. 2d at 347. 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 belt constituted a due process violation. 222 Ill. 2d at 349. Notwithstanding all of the above, the court faults
II
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 222 Ill. 2d at 348-49. 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
“the 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, 52 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, (iii) inmates with multiple sclerosis, (iv) inmates with muscular dystrophy, and (v) inmates who are epileptic. Mar, 28 Cal. 4th at 1229, 52 P.3d at 113, 124 Cal. Rptr. 2d at 183. Based on these facts, the court warned “when the risk of accidental activation is considered, use of stun belt without adequate medical precautions is clearly unacceptable.” Mar, 28 Cal. 4th at 1229, 52 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 “if 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
III
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 on a defendant‘s trial rights. I respectfully dissent.
JUSTICES MCMORROW and KILBRIDE join in this dissent.
Notes
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 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.“The [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.