Defendant appeals a judgment of conviction, following conditional guilty pleas, for driving under the influence of intoxicants (DUII), ORS 813.010, and recklessly endangering another person, ORS 163.195. In her sole assignment of error, defendant challenges the trial court’s denial of her motion to remove a leg restraint that had been placed under her clothing for her appearance at trial. We reverse and remand.
At her arraignment hearing, defendant executed a conditional release agreement that
Before trial, defendant made a motion for removal of the leg restraint. The trial court held a hearing on the motion. Defendant testified that the restraint caused her to walk with a limp and that it made her feel “like a criminal” and like she could not communicate freely with her attorney. The brace made defendant’s pants bulge by her ankle, knee, and thigh. She had elected to wear both slacks and a dress to court because an observer would be able to “tell that the brace [was] on under [her] pants so [she] thought that [she] could cover” it up with a dress. The deputy testified at the hearing that defendant was restrained because of her jail classification as a “medium inmate.” However, the deputy did not know why defendant had received that classification.
The trial court denied defendant’s motion:
“So and in looking I can see that [defendant] has pants that are covering the shackle. It is the — the Corrections Division’s decision as far as they do the classifications for inmates and I do not do those. I have looked and I agree with [the prosecutor] that when she’s ready to testify we can take a break and have her take the witness stand and do the same when she goes to step off the witness stand. She — I can see that she’s somewhat upset but I — we can take a little break for her to collect herself. I do not believe that this would be prejudicial. It’s not visible, it’s not on the outside of her clothing. And the jury is going to be in the first row. There’s a — the front of the jury box kind of covers. You can’t really see over that, so I do not believe there would be any prejudice to [defendant]. So if she needs a little break, it’s already a little late, but we’ll go ahead and take a ten minute break if she needs to be able to collect herself.”
After the trial court denied the motion, defendant entered conditional guilty pleas to the DUII charge and one recklessly endangering count pursuant to ORS 135.335, and the court entered a judgment of conviction on those offenses and sentenced defendant accordingly. The only issue on appeal is whether the trial court erred in denying defendant’s motion for removal of the leg restraint.
The right of an accused to be free from physical restraint during a criminal trial has common-law and constitutional underpinnings. State v. Smith,
“‘The right of a prisoner undergoing trial to be free from shackles, unless shown to be a desperate character whose restraint is necessary to the safety and quiet of the trial, is Hornbook law. The reasons given are: “That his mind should not be disturbed by any uneasiness his body or limb should be under.” State v. Temple, 194 Mo 237,92 SW 869 , 872 [(1906)], in which the author of the opinion states and quotes from Rex v. Layer, 16 How St Tr 94: that such restraint upon a prisoner “inevitably tends to confuse and embarrass his mental faculties, and thereby materially to abridge and prejudicially affect his constitutional rights of defense;” citing People v. Harrington, 42 Cal 165, 10 Am Rep 296 [(1871)], and that, “A prejudice might be created in the minds of the jury against a prisoner who should be brought before them handcuffed and shackled, which might interfere with a fair and just decision of the question of the guilt or innocence of such prisoner.’””
(Quoting Eaddy v. People, 115 Colo 488, 491,
With that host of concerns in mind, we held in State v. Taylor,
A trial judge has “the discretion to order the shackling of a defendant if there is evidence of an immediate and serious risk of dangerous or disruptive behavior.” State v. Moore,
On appeal, defendant argues:
“Here, there was no evidence, and therefore no finding that defendant’s restraint was necessary to ensure the safety or quiet of the trial. Indeed, the court did not give any consideration to the issue, beyond noting the jail staff’s preference and giving effect to that preference. The jail’s desire that defendant be shackled during her trial is insufficient to support a finding that she would not conduct herself appropriatelyduring trial. That does not satisfy the state and federal constitutional guarantees.”
According to defendant, the state failed to establish any risk that defendant would be disruptive or dangerous, or that she would try to escape. Thus, defendant reasons, the trial court was unable to rely on any specific and articulable facts that would have supported a determination that she required restraint.
In response, the state primarily focuses on the fact that the restraint that defendant wore would not have been visible to a jury. The state explains:
“But in cases such as this, where restraints are not visible to the jury, prejudice is not as significant and it is not presumed. [State v.] Bates, 203 Or App [245], 252-52, [125 P3d 42 (2005), rev den,340 Or 483 (2006)]. Thus, their use is not, by default, impermissible. Depending on the circumstances, invisible restraints may or may not be appropriate.
“Because the use of invisible, minimally-intrusive restraints is not necessarily impermissible — -that is, their use may or may not be appropriate, depending on the circumstances of the case — this court should require a lesser showing than what is required in so-called ‘shackling’ cases. And this court should review the trial court’s decision for an abuse of discretion. See Kessler,57 Or App at 473 (generally, trial courts have discretion to determine ‘appropriate security measures necessary during trial’). Here, the trial court did not abuse its discretion. The court relied on three primary facts in making its decision: (1) defendant has 13 prior felony convictions; (2) the supervising authority has classified defendant as a security risk; and (3) defendant would not experience prejudice from the use of the restraint. Given those findings, the trial court did not abuse its discretion and this court should not reverse its decision.”
With the parties’ arguments so joined, this case squarely presents a question that we have not previously answered, namely, whether there is a difference in standards for determining the propriety of ordering a defendant to wear a nonvisible, as opposed to a visible, restraint. That question was presented in Bates, but we were not required to answer it because we concluded that the trial court’s error, if any, in that case was harmless. Bates,
“With the consent of the court and the state, a defendant may enter a conditional plea of guilty or no contest reserving, in writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion. A defendant who finally prevails on appeal may withdraw the plea.”
In appeals arising from conditional guilty pleas, we have consistently declined to engage in a harmless error analysis. In State v. Dinsmore,
“ORS 135.335(3) provides that a defendant may enter a conditional plea and reserve the right to appeal. More to the point, it provides that, if a defendant prevails on appeal, he or she may withdraw the plea. Employing a harmless error analysis would defeat that statutory right. Defendant may, on remand, decide that she wishes to withdraw her plea and go to trial, or she may choose, in light of her limited success on appeal, not to withdraw it. The legislature, however, has left that choice to defendant.”
That reasoning applies equally to this case. If defendant were to prevail on the merits, under the terms of the statute, she may choose to withdraw her guilty pleas on remand. We cannot speculate, based on the record, what choice defendant would make. Accordingly, we are unable to conclude that any error in denying defendant’s motion to remove the restraint was harmless. Id.; State v. Mastin,
Even though we did not resolve the issue in Bates concerning nonvisible restraints,
“[t]hat a stun belt is not visible to the jury may be a distinction without a difference under Oregon law. In [Millican], we explained that the fact that a case was being tried to the court and not to a jury did not make a difference in the applicable analysis. We held that The right to remain unshackled is based on considerations beyond the potential for jury prejudice, including inhibition of free consultation with counsel.’ Id. at 147.”
Bates,
We now conclude that, for purposes of the threshold showing that is required before restraints may be lawfully imposed, the distinction between visible and nonvisible restraints is, indeed, one without a difference.
As discussed, there are three foundations for the common-law and constitutional safeguards against the unfettered imposition of restraints on criminal accuseds: “(1) impingement on the presumption of innocence and the dignity of judicial proceedings; (2) inhibition of the accused’s decision whether to take the stand as a witness; and (3) inhibition of the accused’s consultation with his or her attorney.” Millican,
“‘The removal of physical restraints is also desirable to assure that “every defendant is ... brought before the court with the appearance, dignity, and self respect of a free and innocent [person].” * * *
“‘We believe that possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant’s decision to take the stand, all support our continued adherence to the [rule requiring an evidentiary showing that the defendant is dangerous or a serious flight risk before ordering restraint].”’
57 Or App at472 (emphasis added; citations omitted). Because those precepts do not depend solely on whether restraints are visible to the trier of fact, we conclude that, regardless of that circumstance, the state must adduce evidence that would permit the court to find that the defendant poses an immediate or serious risk of committing dangerous or disruptive behavior, or that he or she poses a serious risk of escape, before the defendant may be restrained.
We turn to the question whether such a showing was made in this case. As noted, the state relies on three factors to support the trial court’s decision: (1) defendant had 13 prior felony convictions; (2) the jail had classified defendant as a security risk; and (3) defendant would not experience prejudice from the use of the restraint. The difficulty is that the record pertaining to defendant’s criminal history does not reflect on her potential dangerousness, disruptiveness, or her status as a flight risk. In fact, the record shows that defendant voluntarily sought the revocation of her pretrial release agreement in order to accrue credit for time served if she were convicted. Moreover, the supervising authority’s classification of defendant as a medium risk, without elaboration, does not help the state. The court was not authorized merely to defer to such a classification in the absence of particularized evidence that explained and justified it. Finally, whether defendant was prejudiced by the court’s ruling would be pertinent to a harmless error analysis; however, it is immaterial
Because that is the only question before us, we conclude that the record before the trial court was insufficient to establish that defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that she posed a serious risk of escape. Accordingly, the trial court erred in denying defendant’s motion to remove her leg restraint.
Reversed and remanded.
Notes
In reaching that conclusion in Merrell, we relied in part on this court’s decision in State v. Amini,
In light of the long line of Oregon authority that supported our conclusion in Merrell that challenges to physical restraints imposed on a defendant are similarly analyzed under Oregon law and the Due Process Clause, we believe that the Supreme Court’s decision in Amini does not call that conclusion into question. See, e.g., Guinn v. Cupp,
We hasten to add that, after making such a finding based on sufficient evidence in the record, the court may well have more discretion to impose nonvisible, as opposed to visible, restraints in certain circumstances. Likewise, the application of harmless error principles may vary depending on whether the restraints are visible. Millican,