*1 Argued September 1995, petition and submitted affirmed November (323 114) April review denied In the Matter of Millican, Shawn, Robert a Minor Child. ex rel
STATE JUVENILE DEPARTMENT MULTNOMAH COUNTY, OF
Respondent, MILLICAN, Robert Appellant. CA A84749)
(9112-83948; *2 Kelly Doyle Michael the cause and filed the brief argued for appellant.
David B. Thompson, Attorney General, Assistant argued for him cause With on the brief were respondent. General, Theodore R. L. Kulongoski, Attorney Virginia Linder, Solicitor General. Deits,
Before and De Muniz and Hasel- Presiding Judge, ton, Judges.
HASELTON, J. Muniz, J.,
De dissenting.
HASELTON, J.
Child from a him to be appeals judgment within the an which, court’s act jurisdiction committing adult, committed an would constitute sexual abuse in the by We degree. third ORS 163.415.1 affirm. court’s from an inci- adjudication arose child, in which then a boys’
dent resident 16-year-old home, grabbed the buttocks group allegedly complainant, staff The court determined that the conduct female member. to nonconsensual “sexual con- subjected complainant tact.” ORS 163.415.
Child first contends that
state failed
prove
that he acted with the mental
reasonable doubt
“sexual,”
contact
intent
to render
necessary
physical
163.415. We review the evidence
within the
of ORS
meaning
19.125(3),
novo,
419A.200(5);
due defer
giving
de
ORS
ORS
made
ence to the
determinations
rel Juv.
State ex
judge.
Beyea,
Cruz,
(1994);
State ex rel Juv.
*3
217-18,
(1992).
216, 218,
The following occurred at colloquy beginning the proceeding: prepared
“[Child’s counsel]: proceed We’re Your one preliminary Honor. There is matter for the court and that relates to the fact that was brought [child] to Court this morning in chains. leg
“That is the current that the procedure sheriffs officers use in transporting children from the detention center to the hearings. courthouse [being]short for various And while may explain that is in why necessary staff[ed] well a lot of I circumstances, strongly object, during the course of the trial, having testify him and participate and while in chains.
“I cooling think it has a definite in effect terms of his And, exercise of constitutional rights. argue his I would it is an interference with to due and a fair right process his trial.
* * * * ‘‘ Your objection just [The noted. I’d note that court]: jury this proceeding. proceeding isn’t a It’s a the court. before — I your And understand But I can concerns. assure — that whether or not he chains not won’t affect the court’s view of evidence here. I presented record, objection, appreciate though. for the do, Then, Honor, frankly “[Child’s counsel]: Your I Court I it is more believe that the can overlook that. think I difficult that. And think it for the to overlook object I affects him in the trial. And participation that basis as well.” adult defen- right has
Oregon
long recognized
*4
restraints
criminal
dants to be free
physical
(1883).
Smith,
trials. 11
Amendment and the Due
Process Clause of
Fourteenth
protects
Constitution,
Amendment to
United
States
testimony
accused from “self-incrimination
mute
of a
disposition.”
App
Moore,
violent
v.
837, 839,
State
Or
(1980). Although
safeguard
most often invoked as
against
jury prejudice,
right
to stand trial
may
unshackled also ensures that defendants
face the court
“
appearance, dignity
self-respect
‘with the
free
”
[person].’
App
v.
469, 472,
innocent
P2d 1070
State
57 Or
(1982), quoting People Harrington,
v.
42 Cal
(1871).
Rep
Am
As we stated Kessler-.
jury may
just
“[T]he inferences the
draw is
one of the
elements of
to a defendant
is
The
who
shackled.
impinge
shackles
on the
of innocence and the
presumption
judicial
dignity
proceedings
may
of the
inhibit consulta-
attorney
tion with his
and his decision whether to take the
474.
stand as a
atApp
witness.”
right
not, however,
to be
is
absolute.
not
shackled
judge
shackling of a
A trial
has “the discretion to order the
is evidence of an immediate and serious
defendant
there
dangerous
Moore, 45
behavior.”
risk of
State
exercising
App
discretion,
the court
Or
at 839-40.
and must
must
and evaluate relevant information
receive
allowing appellate
its decision. Kes
make a
review of
record
Although
be
need not
sler, 57
at 473.
information
conclusory
adversary proceeding,
presented
“a
in a formal
by prosecutor
law
officer
alone
enforcement
statement
necessary
permit
independent
sufficient to
Schroeder,
discretion.”
exercise
(1983).
111, rev
Although et Kessler of the concerns some right apply no to a because there in this context al do not
147 juvenile jury proceeding, court State ex rel Juv. Reynolds, (1993), 560, 317 Or 857 P2d 842 two factors right against physical warrant our extension of the restraint juvenile proceedings. right First, the to remain unshackled beyond potential jury is based on considerations the prejudice, including of inhibition free consultation with coun- App App Kessler, sel. 338 57 Or at 474. Schroeder, Accord Or at 62 (finding process n violation of due where the defen- jury). dant’s shackles were not visible the That concern applies equally in the context. extending right
Second, to remain unshackled during juvenile proceedings is consonant with the rehabilita purposes Oregon’s juvenile justice system. gen tive erally Reynolds, of See Allowing young person
Here, the court received no evidence that child dangerous an immediate and risk serious of findings Consequently, behavior and made no to that effect. leg denial of child’s motion to remove the chains was error. App Schroeder, 62 Or at 337-38. argues,
The state nevertheless, that that error was App (applying harmless. Schroeder, See at 338 harm less error to trial court’s denial of defendant’s shackles). motion to remove Because the error was of federal magnitude, constitutional we consider whether it harm Walton, less 230-31, a reasonable doubt. Or (1991); Schroeder, 338.3 Or at types we identified three (1) shackling: impingement presump on dignity judicial proceedings; tion innocence and the Oregon does assert violated the Constitu Because child convincing tion, 2,n we do not consider whether there is “substantial and see Walton, guilt evidence of little likelihood that the error affected the verdict.” (1987)). 169, 180, Hansen, (citing P2d 157 Or at 230-31
(2) inhibition of the accused’s decision whether to take the (3) witness; stand as inhibition of the accused’s consul- attorney. tation with his her at 474. We consider each in turn. presence
Child asserts that the of shackles affected particularly trial evidence, court’s assessment credibility. note, critical issues of We that at the however, beginning delinquency proceeding, of the ‘ stated chains ‘won’taffect the Court’s view ofthe stating concurred, evidence here.” Child’s trial counsel she *6 “frankly believe[d] that,” the court can overlook and proceeding any made no prejudicial impact or record either after the juvenile on the court as the trier of fact. argues, presence nevertheless, Child that even if the of shackles did not somehow bias the court’s assessment of his — credibility,hisdemeanoritself is, that the manner in which presented through posture, himself to facial he the court — by shackling. expressions, and the like was affected his in a different Whatever the merits of such consideration unsupported record on our case, it is on the here. Based independent evidence, believe review of the we do not impermissibly court’s determinations were trial skewed. preju- third sources of to the second and
As leg chains in this record that dice, there is no indication testify, adversely him or inhibited child’s decision affected testify, consulting and did, fact, in with counsel. Child any suggestion of presented of events his version Similarly, the record shows colloquy reluctance. discomfort participate with in counsel’s occasion child did on right to consult there is no indication that court, any actually impaired in fashion. was the constitu- record, satisfied that we are On this denying unshackled motion to be in child’s tional Accordingly, beyond doubt. reasonable harmless committing jurisdiction which, an act for within the court’s 163.415. violate ORS would adult, an committed Affirmed. dissenting. MUNIZ, J.,
De juvenile agree I that the court here made no record posed dangerous that child an immediate or serious risk of ordering behavior, in and therefore erred leg disagree irons removed. I because that the error beyond respectfully was harmless doubt, reasonable I dissent. assessing effect of the error, court’s majority possible types prejudice focuses on the set out (1982)
in 469, 474, (risk impinging presumption of innocence and the dignity judicial proceedings, inhibiting as well as consulta- testify). major- tion with counsel and decision whether to ity holds the error harmless a reasonable doubt appearance leg because it finds that child’s irons did not fact, as trier child did, testify in fact, with consult counsel. 138 Or at 148.1 disagree majority’s for two reasons.
First, in addition to the factors, Kessler I would also potentially prejudicial ability consider the effect on a child’s testify, likely psycho- to logicallyjarring may seriously because to be more Wearing than *7 children adults.1 irons telling
undermine a child’s confidence in story, adversely side of which affect would experienced juvenile judge. determinations of even the most majority’s Second, central to the analysis shackling to is child’s failure demonstrate how the prejudiced Specifically, majority him. notes that child’s ‘ during proceeding no or after counsel ‘made record either any prejudicial impact on the court a trier of as to as App unnecessarily fact.” at Because I believe that 138 Or 148. hearing delinquency presumptively in a children required prejudicial, child not to make a I would hold that was prejudice. record of 1 majority apparently factor found that here considered this because it any suggestion “presented of discomfort or his version of events App at 148.
reluctance.” 138 grant we
This is no more than adult defendants who Bird, shackled without cause. In both Kessler and v. are (1982), App den 294 Or 74, 650 59 Or rev the state argued that the error was harmless because the defendants they prove prejudiced failed to how were their unwar physical restraints. We held that ranted “the to a defendant shackled or otherwise prejudice physi- cally not during restrained trial and need be manifest By showing in an individual case. he proven was shackles, showing to wear without a of substan- required necessity, of his tial defendant has demonstrated violation App due to a fair trial.” 57 Or at process right Kessler) 474-75; Bird, (emphasis at 78 (quoting 59 Or supplied).2
Similarly,
Godinez/McKay,
in Duckett
F3d
(9th
1995),
place
the Ninth Circuit refused to
the burden
Cir
prejudice
petitioner
proving
habeas
who had
on an adult
during
compelling reasons
his sen-
shackled without
been
tencing
presented
Although
hearing.
petitioner
had
Id. at 749.
prejudice
the court
level,
evidence of
at the trial
no
“[t]he
perform
because
declined to
a harmless
* **
Long,
Id.;3
of doubt
is on the state.”
but see State
risk
(1952) (handcuffing the defendant
81,
its testify. at whether to and decision counsel defendant’s consultation 474. error, finding go but instead as far reversible The Duckett did appeal Duckett was an hearing prejudice. F3d 749. on for a remanded governed by of review. We corpus a different standard action an adult habeas 19.125(3). 419A.200C5); hearings ORS de novo. juvenile delinquency ORS review substantial neces Bird prejudice absent a Kessler presume Because hearing case, court for a required remand to the sity, we are not as in this prejudice. shacking are unless Long means that errors harmless It whether is unclear *8 merely not error if is prejudice, or record of makes a the defendant ’’ dissent, I would grounds. stated later in this reasons For supported “reasonable uncertainty favor. in child’s resolve
If we do require not criminal defendants to demon- strate from unwarranted shackling, we cannot that burden place on juveniles. Physically chil- restraining dren without not violates the proper findings only protec- afforded adults, tions it also thwarts the historical purpose juvenile Oregon’s justice system.
Since 1907, the focus of juvenile this state’s proceed has been on ings “rehabilitation” of delinquents and not on “crime control.” ex Reynolds, rel Juv. (1993). 567,
560,
Task ‘best standard with the stated purpose protecting public, fair and reducing juvenile delinquency impar- and providing conduct.5 Or dealing tial delinquent procedures Laws la(l). § ch SB 1 becomes operative the time not the law at of child’s January 1996. It was appeal. to this Further- dispositive and thus is hearing, and makes more, Reynolds even if SB 1 overrules effectively more akin to criminal prosecutions, delinquency hearings juveniles protec- is all the not to deny more reason tions afforded adult defendants. findings requisite system, shackling a child without the Even under this new impartial procedure.” “fair and
is not a
I
majority
also
the
would be
acknowledge
cor-
rect in
harmless error if there was “overwhelming
act,
evidence” that child committed an
which if
by
done
an
adult, would constitute
abuse in the
See
degree.
sex
third
Schroeder,
rev
111,
den
(unwarranted
(1983)
This case is similar to Or App (1985). Glick, we could not that shack- say harmless ling the defendant without cause was the a reasonable doubt because evidence came down to the alleged contest between defendant and victim. credibility Id. words, effect, 83 n 1. In other we could not tell what at the shackles had on the any, jury’s credibility defendant’s determinations. issue,
Here, as conceded child’s dispositive below, was not whether child touched alleged counsel victim, he did so with the intent of requisite but whether Glick, As in either the victim or himself. sexually gratifying these two underlying incident were only witnesses to essentially was asked to judge and the court parties, I cannot their accounts. conflicting weigh child’s shackles did not affect from the record that conclude his failure to remove cannot say his thus credibility,6 doubt. a reasonable harmless error beyond irons was directing hearing, would remand for a new I without physical to allow child finds that evidence and unless the court receives restraints, dangerous or risk of an immediate or serious poses behavior. repetitions pauses, testimony many transcript shows of child’s this sentences, of himself. Whether and unsure if he were hesitant unfinished made him nervous proceedings themselves way speaking, or the normal child’s Bird confidence, say. I cannot Under undermined the shackles shackling did not that the Duckett, however, to demonstrate the burden state has prejudice child.