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No. 3-02-0382

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

MODIFIED UPON DENIAL OF PETITION FOR REHEARING
JUSTICE LYTTON delivered the opinion of the court:

Defendant was charged with two counts of murder. At trial, hewas forced to wear an electronic stun belt. He objected and askedthe court to have the belt removed. The court refused, but failedto make findings supporting its decision as required by People v.Boose, 66 Ill. 2d 261 (1977). We reverse, finding that the court'sfailure to consider the Boose requirements amounted to a denial ofdefendant's due process rights.

Defendant, Rene Martinez, was charged with two counts ofmurder. Pursuant to the Will County Sheriff's "standard operatingprocedure," he was forced to wear an electronic stun belt in court.The belt is worn around the waist and has prongs that are attachedto the wearer over the left kidney region. These prongs arepowered by two nine volt batteries. The belt is activated byremote control, and upon activation, delivers an eight second,50,000 volt shock that cannot be stopped. The shock often knocksits wearer down, incapacitating the person for up to 45 minutes. Activation of the belt may also cause immediate and uncontrollabledefecation and urination.

Before and during the trial, defendant objected to wearing thebelt: "[the guards] just told me I have to wear some type of beltthat's going to make me defecate and urinate on myself. *** I amscared as heck wearing this to me. *** [I]f I have to wear it, Idon't want to be in this courtroom. *** [T]ry me in absentia."

The trial court found that defendant had done nothing tojustify use of the belt, but explained that he generally requireddefendants accused of rape and murder or attempt murder to wear thebelt. When the prosecutor and deputy informed him that it was thesheriff's policy that all custodial defendants charged with afelony wear the belt, the judge then stated that he would not remove the belt because he did not want to disrupt the sheriff'sstandard operating procedure. The 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 operatingprocedure, even if it's a [sic] 80-year old lady who is in custodywith the cuffs off and going to trial on a Class 4 Felony, it'sworn in court now. And I am not going to change the Sheriff'sDepartment's policy."

The trial commenced, and defendant was convicted. He wassentenced to 60 years imprisonment.

Defendant argues that he was denied a fair trial because thetrial court failed to apply the appropriate test for shackling adefendant in the courtroom. The state responds that since defendantwas not prejudiced, any error by the court was harmless.

Shackling of the accused should be avoided if possiblebecause: (1) it tends to prejudice the jury against the accused;(2) it restricts his ability to assist his counsel during trial;and (3) it offends the dignity of the judicial process. People v.Boose, 66 Ill. 2d 261, 265 (1977). The decision to shackle adefendant is left to the discretion of the trial judge, and he mayselect the physical restraints most suitable in light of all thecircumstances. Boose, 66 Ill. 2d at 266. An accused should neverbe placed in restraints in the presence of the jury "unless thereis a showing of a manifest need for such restraints." Boose, 66Ill. 2d at 265-66.

The trial judge must state for the record his reasons forallowing the defendant to remain shackled and must give thedefendant's attorney an opportunity to present reasons why thedefendant should not be shackled. People v. Buss, 187 Ill. 2d 144,216 (1999). Factors to be considered by the trial judge in makingthis determination include:

the seriousness of the present charge against thedefendant; defendant's temperament and character; his ageand physical attributes; his past record; past escapes orattempted escapes, and evidence of a present plan toescape; threats to harm others or cause a disturbance;self-destructive tendencies; the risk of mob violence orof attempted revenge by others; the possibility of rescueby other offenders still at large; the size and mood ofthe audience; the nature and physical security of thecourtroom; and the adequacy and availability ofalternative remedies. Boose, 66 Ill. 2d at 265-66.

Courts must consider these criteria when deciding whether it isappropriate to shackle a defendant in the presence of the jury. Ifthe factors weigh in favor of shackling, then the defendant may berestrained. See Buss, 187 Ill. 2d at 217-18. Failure to properlyconsider the Boose factors is a due process violation. Boose, 66Ill. 2d at 269. A Boose analysis must be performed in bench trialsas well. In re Staley, 67 Ill. 2d 33, 37-38 (1977)

The court in this case never made a Boose analysis; it simplydeferred to the judgment of the sheriff. The trial court statedthat it did not matter what specific circumstances the individualpresented; any defendant in custody and charged with a felony hadto wear the belt. This refusal to consider each defendant'scircumstances individually directly contravenes our supreme court'sholding in Boose.

Before shackling a defendant, Boose requires that the trialcourt consider various factors, state for the record its findingson those factors and give defendants an opportunity to explain why they should not be shackled. Here, the trial court abdicated thatresponsibility by allowing the sheriff to make the determination.The court indicated that it had no choice because of the sheriff'spolicy. We believe the opposite is true. The court must rigorouslycontrol its own courtroom procedures, and, consistent with themandates of due process, protect the rights of the parties and thepublic. By adhering to the sheriff's draconian shackling policywithout first evaluating its constitutionality, the trial courtfailed to protect defendant's right to a fair trial.

The State argues that the court's failure to analyze the Boosefactors was harmless error. However, Boose itself provides that nomatter how "strong the evidence against an accused may be, a fairtrial, in all its stages, is a fundamental requirement in acriminal prosecution and when such requirement is not met, itamounts to a denial of due process of law." Boose, 66 Ill. 2d at268. Forcing defendants to wear the electronic stun belt withoutfirst engaging in a case-by-case Boose analysis violates the rightto a fair trial. Therefore, defendant must be granted a new trial. Because we are reversing and remanding defendant's convictionfor the reasons stated, we need not reach other issues raised inthe appeal.

The judgment of the circuit court of Will County is reversed,and the cause is remanded for a new trial.

Reversed and remanded.

MCDADE, J., specially concurring and SLATER, J., dissenting.

JUSTICE McDADE, specially concurs:

I completely concur with the analysis set forth in the Opinionand write separately only to state my belief that the use of stunbelts such as the one used on defendant in this case should becompletely prohibited in the courtrooms of Illinois.

In People v. Boose, 66 Ill. 2d 261, 362 N.E.1d 303 (1977), theIllinois Supreme Court found that shackling should be avoidedbecause it tends to prejudice the jury against the accused,restricts the ability of the accused to assist his counsel, andoffends the dignity of the judicial process. Boose, 66 Ill. 2d at265, 362 N.E.2d at 305. The court then set out a 13-factor testfor assessing the "manifest need" for restraints in the presence ofa jury. Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at 305.

The dissent argues that defendant must establish "actualprejudice," citing People v. Peeples, 205 Ill. 2d 480 (2002). However, Boose controls this issue and provides the trial courtwith a clearly defined analysis it must use before shackling adefendant in every case. Nowhere does Boose require the defendantto show actual prejudice.

Later that same year, in In re Staley, 67 Ill. 2d 33, 364N.E.2d 72 (1977), the court considered the propriety of handcuffinga juvenile during an adjudicatory hearing. The State argued thatthe juvenile was not prejudiced because there was no jury to beaffected by seeing him in handcuffs. The court rejected thatargument as too narrow, concluding instead that, even where thereis no jury, any unnecessary restraint is impermissible because ithinders the defendant's ability to assist his counsel, runs afoulof the presumption of innocence, and demeans both the defendant andthe proceedings. Staley, 67 Ill. 2d at 37-38, 364 N.E.2d at 73-74.

Shackling and handcuffing are benign forms of restraint whencompared with 50,000 volts of electricity jolting through the humanbody for a period of 8 seconds. If, as the supreme court hasfound, shackling and handcuffing can impede the defendant's abilityto assist in his defense, run afoul of the presumption ofinnocence, and demean the defendant and the judicial proceedings,how much more offensive to those rights is a restraint that, whenactivated, incapacitates the wearer for up to 45 minutes and causesimmediate and uncontrollable defecation and urination? I have notrouble at all understanding how a defendant, crippled by the fearthat any movement, however harmless, might cause a guard,intentionally or accidentally, to electrify him with the above-described results, would be incapable of focusing on the trial andassisting counsel in presenting a meaningful defense.

Surely less draconian restraints have previously provenadequate to control even the most aggressive defendant. Shouldthere be one for whom more measured restraint is completelyineffective, however, it would, in my opinion, be less offensive todue process to have a defendant participate by closed circuittelevision or be tried in absentia than to have him or her writhingin agony (and feces and urine) on the courtroom floor.

I believe that fundamental principles of due process requirea general ban on the use of stun belts in Illinois courts.

JUSTICE SLATER, dissenting:

I agree that the trial court erred when it allowed the stunbelt to be used without determining whether the circumstancesdemonstrated a "manifest need" for such a restraint. See Boose, 66Ill. 2d 261, 362 N.E. 2d 303. A trial court abuses its discretionwhen it abdicates its decision-making authority regarding stun beltuse to security personnel or law enforcement officials. People v.Mar, 28 Cal. 4th 1201, 52 P. 3d 95, 124 Cal. Rptr. 2d 161 (2002);State v. Flieger, 91 Wash. App. 236, 955 P. 2d 872 (1998). As theSupreme Court of Kansas noted:

"It is the trial judge's responsibilityto insure that the defendant receives a fairtrial. The sheriff is in control of thedefendant outside the courtroom, but, withinthe courtroom, the obligation of courtroomsecurity becomes a matter of shared concern. While deference should be given to lawenforcement officers with securityobligations, the trial judge must retaincomplete control over the courtroom andexercise his or her discretion in finallydetermining if restraints are to be utilized." State v. Powell, 274 Kan. 618, 636, 56 P.3d189, 201 (2002).

I believe, however, that the use of stun belts may bejustified in appropriate cases. See D. Kendrick, United States v.Durham: Are the Criminal Defendant's Rights at Trial Violated byWearing a Stun Belt?, 26 Am. J. Trial Advoc. 711, 715-16 (2003)(collecting cases where use of stun belts has been upheld); but seeWrinkles v. State, 749 N.E.2d 1179 (Ind. 2001) (Indiana SupremeCourt prospectively barred use of stun belts). More importantly,I do not believe that the erroneous use of a stun belt alwaysrequires reversal of a defendant's conviction.

In People v. Peeples, 205 Ill. 2d 480, 793 N.E.2d 641 (2002),the defendant raised an issue in his post-conviction petitionregarding the fact that uniformed deputies sat behind him duringhis trial and a deputy sheriff escorted him to the witness standand stood behind him while he testified. After finding that suchsecurity measures were not inherently prejudicial, our supremecourt stated that "once the challenged security measures are foundnot to be inherently prejudicial, the defendant bears the burden ofaffirmatively demonstrating actual prejudice as a result of the in-court security." Peeples, 205 Ill. 2d at 531, 793 N.E.2d at 672.

In this case I do not believe that the use of the stun beltwas inherently prejudicial. There is no indication that the jurywas aware of its existence or that it had any effect on thedecision in this case. Despite the defendant's assertion that hewas "scared as heck" of the belt, defendant does not explain howthe belt allegedly impeded him in the ability to assist in hisdefense. In my opinion, the defendant simply failed in meeting hisburden of demonstrating actual prejudice. I therefore dissent.