State v. MerrellState v. Merrell
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- Before:
- Brewer
Defendant appeals from his convictions for two counts of felony murder, based on the underlying crimes of burglary in the first degree and robbery in the first degree.
Defendant was tried as an adult
1
under
The state initially argues that defendant’s state constitutional argument is not preservеd. We disagree. Defendant objected to his restraint on several occasions during the proceedings, relying on Oregon decisions that recognized both federal and state constitutional protections. Defendant’s objections adequately explained the rationale of his argument and informed the trial court that he relied in part on the Oregon Constitution. See State v. Amini, 154 Or App 589, 593, 963 P2d 65, rev allowed 327 Or 620 (1998) (holding that defendant preserved claim that statute was unconstitutional by explaining his rationale, even though he did not identify a particular constitutional provision that was offended).
Although we generally decide state constitutional issues before reaching federal constitutional questions, State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983), Oregon courts have treated restraint issues similarly under Article I, section 11, of the Orеgon Constitution, and under the Due Process Clause. See Amini, 154 Or App at 595. The Oregon Constitution does not have a “due process clause.” Id. at 595 n 2. However, in Amini, we explained that an accused’s “right to a public trial by an impаrtial jury” in Article I, section 11, guarantees the right to a fair and impartial trial. Id. at 594 (quoting State ex rel Ricco v. Biggs, 198 Or 413, 428, 255 P2d 1055 (1953)); but see State v. Guzek, 322 Or 245, 279, 906 P2d 272 (1996) (Graber, J., dissenting) (Article I, section ll’s, “impartial jury” protection governs only the composition of the jury panel). We also explained that the protections found in Article I, section 11, and the federal Due Process Clause “embody a similar ‘fairness’ standard.” Amini, 154 Or App at 594. See also Guinn v. Cupp, 304 Or 488, 493, 747 P2d 984 (1987) (Oregon “common-law” right to remain free frоm restraints is similar to due process right, citing Estelle v. Williams, 425 US 501, 505, 96 S Ct 1691, 48 L Ed 2d 126 (1976); Illinois v. Allen, 397 US 337, 344, 90 S Ct 1057, 25 L Ed 2d 353 (1970)). Accordingly, in addressing that state constitutional protection, we consider authority that applies to the largely similar analysis under the Due Process Clause. Amini, 154 Or App at 594.
Oregon has long recognized the right of defendants to be free from physical restraints during criminal trials. See State v. Smith, 11 Or 205, 207-08, 8 P 343 (1883); State ex rel Juv. Dept. v. Millican, 138 Or App 142, 145, 906 P2d 857 (1995), rev den 323 Or 114 (1996). The use of restraints “impinge[s] on the presumption of innocence and thе dignity of the judicial proceedings and may inhibit [a defendant’s] consultation with his attorney and his decision whether to take the stand as a witness.” Kessler, 57 Or App at 474. With that overriding set of concerns in mind, we held in State v. Taylor, 123 Or App 343, 858 P2d 1358 (1993), that “[t]o restrain a defendant during trial the judge must find, on the rеcord, that the defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape.” Id. at 348 n 3. We also havе stated that restraint of a defendant during trial without substantial justification results in manifest prejudice. State v. Glick, 73 Or App 79, 82, 697 P2d 1002 (1985); State v. Schroeder, 62 Or App 331, 337-38, 661 P2d 111, rev den 295 Or 161 (1983).
In exercising its discretion to impose physical restraints, “the court must receive and evaluаte relevant information and must make a record allowing appellate review
Defendant objected to his restraint during pretrial proceedings, at the start of the jury trial, and after the state rested. On each occasion he argued, as he does on appeal, that the information in the record was insufficient to establish that he posed an immediate or serious risk of committing dangerous or disruptive behavior or that he posеd a serious risk of escape. 2
During a pretrial hearing, the sheriff asked the court to order defendant restrained for several reasons. The deputy cited defendant’s “youth and athletic ability,” the fact that only one deputy was going to be present in the courtroom, defendant’s “maximum custody” status and the deputy’s concern that he would have to pursue defendant should he attempt to escape.
The state presented additional information from which the court was independently able to determine that defendant posed an immediate and serious security risk. During a pretrial hearing, the prosecutor offered a letter that described defendant’s juvenile record and prior history of disruptive and threatening behavior in juvеnile correction and detention settings. In particular, the letter recited that defendant was defiant and disruptive in Oregon Youth Authority custody, was removed from a foster home in 1995 due to safety concerns, was found in possession of a firearm in 1996 in violation of the terms of his probation, and was terminated from a treatment center in 1997 after becoming angry, swinging a stick around, and destroying other people’s property. The letter also described defendant’s escape plan while incarcerated in a juvenile detention facility during the pendency of this case:
“[Defendant] approached another youth in the facility and discussed a potential escape plan that involved calling a staff member into the bathroom, asking for additional toilet paper, and striking the staff member while he was off guard and taking the keys. [Defendant] also [allegedly] stated that ‘All I need is one shot at that fence and I’ll be out of here.’ ”
In addition, the letter stated that defendant had absconded from juvenile probation supervision in Lincoln County.
In response to the information provided, the court directеd that defendant remain shackled during the pretrial proceedings. At the beginning of trial, the prosecutor requested that defendant
“remain shackled based upon his prior escaрe plans out of [juvenile detention], the fact that there will be only one deputy who will be in attendance here, as well as the nature of the charges, and his youth, if he were to attеmpt to escape and [the deputy] not be able to capture him.”
In considering that request, the court again discussed the potential for additional deputies in lieu of the use of
restraints. The court pointed out that “[t]he Sheriffs Office * * * is understaffed, to put it charitably.” The court also confirmed that, because of the
Taking into account defendant’s histоry of assaultive conduct in juvenile correction and detention settings, his history of flight, and his previous plan to escape by force from the juvenile detention facility in which he had been detained while awaiting trial in this case, we conclude that the trial court did not err in determining that defendant posed an immediate and serious risk of dangerous or disruptive behavior and а serious risk of escape from the courtroom. Therefore, the trial court did not abuse its discretion in restraining defendant as it did. It follows that the court also did not err in denying defendant’s motion for mistrial.
Affirmed.
Notes
Defendant was 15 years old at the time of the murder.
Defendant challenges the trial court’s decision to restrain him only on the ground that the record was insufficient to establish that he posed an immediate and serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape. He does not argue that his restraint was impermissible because the trial court failed to pursue less restrictive alternatives to shackling. Compare Duckett v. Godinez, 67 F3d 734, 747-49 (9th Cir 1995), cert den 517 US 1158 (1996) (court must pursue less restrictive alternatives before imposing physical restraints) with, e.g., State v. Farrar, 309 Or 132, 158, 786 P2d 161, cert den 498 US 879 (1990) (applying immediate and serious risk of danger or disruption or esсape test without reference to less restrictive alternatives). We have no occasion in this case to consider whether such a determination is constitutionally required.