This is an appeal from the defendant’s conviction of conspiracy to commit aggravated felonious sexual assault, RSA 629:3 I. We must decide whether the trial court abused its discretion by allowing the defendant to be held in handcuffs in the presence of the jury during a view in the county jail, whether the court erred in admitting into evidence certain statements which the defendant argues were inadmissible as hearsay or as out-of-court statements by an absent witness, and whether there was sufficient evidence to support the jury’s verdict. We find no abuse of discretion, no error by the court regarding the admissibility of evidence, and sufficient evidence to support the finding of guilt. We therefore affirm.
On January 4, 1980, the grand jury indicted the defendant, Joseph Gilbert, for conspiracy to commit aggravated felonious sexual assault. The indictment alleged that the defendant and Michael McKenery had conspired “in the form of a trial, so-called” to commit the crime against Paul J. Newlin. The indictment further stated that the defendant and McKenery had participated in the “trial,” at which “Newlin was sentenced to perform acts of sexual penetration against his will.” The indictment alleged that the overt act in furtherance of the conspiracy had occurred on or about November 28, 1979, when McKenery purposely coerced Newlin “to submit to sexual penetration by Joseph Gilbert at the Belknap County Jail by threatening physical violence against Paul J. Newlin,” and that Gilbert then “performed an act of sexual penetration” on Newlin, with the knowledge that Newlin was consenting only as the result of the threats and not of his free will.
Prior to any testimony at the trial, the jury was taken on a view to the county jail. The Trial Court (Batchelder, J.) ordered that the defendant be held in handcuffs at the view. The transcript includes the minutes of a meeting or conference between counsel and the court held in chambers the day following the view. That record discloses that the bailiff had been concerned with the close proximity between the jurors and the defendant at the “very confined area of the view,” and considering the “very violent background” of the defendant, which included three convictions of aggravated assault, he had, for security reasons, requested that the court order that the defendant be handcuffed. The judge also noted *308 for the record that he had sentenced the defendant for one of these previous aggravated assaults, wherein he had been aware of a physician’s opinion that the defendant was a stable individual, and on the other hand also aware of a probation department report which indicated that the defendant was “irresponsible, dangerous, was beyond rehabilitation and should be confined.” The defendant’s only objection taken, exception noted and reserved, was to the court’s order that the restraints be placed on him.
At the trial, the superintendent of the jail testified under cross-examination by the defendant’s counsel that he had not received any complaints of sexual misconduct during November and December of 1979. On re-direct examination, the superintendent testified that one of his prisoners, Paul J. Newlin, on January 9, 1980, had reported to him an incident involving sexual misconduct. The defendant objected to the introduction of this evidence on the ground that it was hearsay.
Paul J. Newlin, the alleged victim of the sexual assault, testified at trial that on November 26, 1979, he was confined as a prisoner in the left block of the Belknap County Jail with five other prisoners, including McKenery and Gilbert. He further testified that the other five prisoners held a “trial” in late November 1979, to determine whether Newlin was “someone who was giving statements against people,” “a rat.” At the conclusion of this mock “trial,” Gilbert, McKenery, and another prisoner found Newlin guilty and sentenced him to no cigarettes, confinement to his cell, cold showers, and the loss of some of his food. The State offered evidence through Newlin that McKenery had told Newlin three or four days after the “trial” that the sentence also required Newlin to perform fellatio on two or three people. The defense objected to the admissibility of this evidence on the ground that this statement was hearsay. After a hearing outside the presence of the jury, the trial judge overruled the objection, ruling that the statement was admissible because it was a statement of a co-conspirator.
The defendant argues that the trial judge’s ruling that he be held in handcuffs at the view in the presence of the jury abridged his constitutional right to a fair trial, impaired the presumption of his innocence, and was an abuse of judicial discretion constituting reversible error. We note that the issues relating to the physical restraint of a defendant at a view are of first impression before this court.
In one of his discourses, Sir Edward Coke cited Bracton, the medieval jurist of thirteenth century England, as saying: “If felons come in judgments to answer, they shall be out of irons, and all manner of bond, so that their pain shall not take away any manner
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of reason, nor them constrain to answer, but at their free will.” 3 E. Coke, Institutes of the Law of England 34 (London 1809).
See generally
Krauskopf,
Physical Restraint of the Defendant in the Courtroom,
15 St. Louis U.L.J. 351, 351-55 (1971). This early common law right of a criminal defendant to appear in court free of any restraints has likewise become the rule in this country.
State v. Roberts,
Many courts, however, have held that “[a] defendant may be shackled when there is reason to believe that he may try to escape or that he may pose a threat to the safety of people in the courtroom or if it is necessary to maintain order during the trial.”
People v. Boose,
This case differs factually from most of the cases involving the use of physical restraints because the defendant in the case at bar was not restrained while present at the courtroom trial, but was handcuffed while on a view at which the jury was present. In this jurisdiction, the trial court has the discretion to allow a view, RSA 519:21, and the “[¡Information that a jury obtains from a view is evidence which it is authorized to use in reaching a verdict.”
Chouinard v. Shaw,
The defendant concedes that “[t]he trial court undoubtedly has the authority to keep a defendant manacled at the view” but argues that the trial court abused its discretion by failing to give sufficient deference to the defendant’s right to appear before the jury without handcuffs. Our inquiry into the record indicates that the trial judge had before him substantial evidence upon which to base his conclusion that the circumstances were so extraordinary that they warranted the restraint of the defendant. The record demonstrates that the bailiff had informed the trial judge prior to the view that the defendant and jury would, because of the physical layout of the site of the view, be brought into close proximity in a very confined area. Furthermore, the judge properly based his decision on the knowledge of specific instances of violent crime for which the defendant had been convicted.
People v. Boose, supra
at 266-67,
Regarding the defendant’s argument that he was prejudiced because the jury saw him in handcuffs at the view, we recognize that the sight of the accused in handcuffs alone might interfere with the presumption of the defendant’s innocence and that, therefore, courts should impose restraints or shackles on defendants only in cases of evident necessity.
See Kennedy v. Cardwell, supra
at 111. “The use of restraints is not ‘inherently unfair,’ however, because the adverse effect may be an unavoidable consequence of protecting an important state interest — such as safety in the courtroom. Therefore, the defendant must show that the practice was prejudicial in his case — that is, was not necessary to protect an important state interest.”
Williams v. Estelle,
We uphold the trial court’s exercise of discretion in the present case. We reiterate, however, that in the interest of fairness, a defendant should not be subjected to physical restraints of any kind while in the jury’s presence unless there is a showing of manifest need. The trial court should conduct a
formal hearing
on the record prior to a view or a trial at which it is contemplated that a defendant is to be restrained. Restraints are to be avoided if possible, but if restraints are necessary, they should be as unobtrusive as is possible, although as effective as is necessary under the circumstances. When visible restraints are imposed, the court should, unless the defendant objects,
sua sponte
instruct the jury as to the presumption of the defendant’s innocence and that such restraints should have no bearing on the determination of the defendant’s innocence or guilt.
See generally
Annot.,
The defendant next argues that the court erred in allowing the victim, Newlin, to testify, under the co-conspirator exception to the hearsay rule, concerning certain statements made by McKenery to Newlin. In
State v. Colby,
We disagree with the defendant’s contention because the transcript provides ample independent evidence that the underlying conspiracy existed when the contested statement was made. The victim of the sexual assault, and another perpetrator of the assault, testified that Newlin was forced to perform fellatio on the defendant and McKenery. The record further reveals that during the actual assault, when Newlin attempted to cease performance of the sexual act upon the defendant, McKenery forceably maneu *312 vered Newlin’s head, threatening to break his back if he refused to comply. Furthermore, that the participants at the “trial” were also participants at the sexual assault of Newlin was circumstantial evidence going to the issue of the relationship between the conspiracy to sexually assault and the “trial” itself. There was also circumstantial evidence to support the existence of a conspiracy in testimony concerning the circumstances surrounding the making of the statement to which the defendant now objects. Newlin testified that when McKenery informed him of the addition to his sentence, the defendant was standing close by the two men. We conclude that the cumulative effect of this evidence demonstrates that a conspiracy existed between the defendant and McKenery. Accordingly, we hold that the trial judge properly admitted McKenery’s statement under the co-conspirator exception to the hearsay rule.
The defendant further asserts that the admission of the statement by the co-conspirator violated his right to confront the witnesses against him under the Sixth and Fourteenth Amendments to the Federal Constitution and under Part 1, Article 15 of the New Hampshire Constitution. He argues that under our holding in
State v. Larochelle,
The defendant also argues that the trial court erred in not excluding the testimony of the superintendent of the jail concerning the victim’s report of sexual misconduct. We disagree with the defendant’s contention that the statement was inadmissible
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hearsay. It appears from the record that the statement elicited from the superintendent by the State on re-direct examination regarding Newlin’s report of sexual misconduct was not admitted by the trial judge to demonstrate its truth or falsity but, rather, was admitted for the limited purpose of indicating that the statement was made.
See State v. Belkner,
Finally, we conclude that “viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found [the existence of a conspiracy] beyond a reasonable doubt.”
State v. Kiluk,
Affirmed.