No. 3-07-0255
_________________________________________________________________
Filed January 5, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
)
v. ) No. 01-CF-902
)
ANTHONY JOHNSON, ) Honorable
) Gerald Kinney,
Defendant-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________
Following a jury trial, defendant Anthony Johnson was
convicted of attempt robbery and aggravated battery (720 ILCS 5/8-
4(a), 1801(a), 12-4(b)(8) (West 2000)). The trial court sentenced
him to eight years in prison. He appealed, and we reversed and
remanded for a retrospective hearing to determine whether it was
necessary to require defendant to wear an electronic security belt
as a restraining device at trial. People v. Johnson, 356 Ill. App.
3d 208 (2005). On remand, the trial court concluded that the
security belt was necessary. Defendant appeals that decision,
arguing that it was an abuse of discretion. We agree and reverse
and remand for a new trial.
Defendant attempted to rob a female employee at a Subway
restaurant by threatening to shoot her if she refused to give him
money from the store’s cash register. He was arrested and charged
with attempt robbery and aggravated battery.
Prior to defendant’s testimony at trial, defense counsel asked
that defendant’s electronic security belt be removed. The trial
court denied the request, stating that defendant needed to remain
in the belt because he had prior convictions of "aggressive types
of crimes."
On direct appeal, defendant argued that the judge violated his
right to due process by requiring him to wear the stun belt during
trial where there was no showing of a manifest need to restrain
him. We agreed and remanded the cause to allow the trial court to
conduct a retrospective hearing to determine whether the use of the
security device was necessary using the 13 factors enumerated in
People v. Boose, 66 Ill. 2d 261 (1977). Johnson, 356 Ill. App. 3d
at 212.
At the hearing on remand, the State argued that restraining
defendant was justified based on defendant’s prior criminal
history, which included convictions for robbery, theft, aggravated
robbery, and burglary. The State also argued that the belt was
necessary to restrain defendant based on the seriousness of the
charges in this case and defendant’s physical stature. The
prosecutor described defendant as "fit" at the time of trial. He
estimated that defendant weighed 195 pounds and stood 5' 7" tall.
In response, defense counsel claimed that the decision to use
the electronic security belt had been unilaterally made by the Will
County Sheriff’s office. Counsel further argued that the belt was
2
unjustified because defendant had not been violent or disruptive
during the proceedings, none of his past offenses indicated that he
was an escape risk, and he was not involved with a co-defendant at
large who might have tried to rescue him. Both parties agreed that
there were no spectators in the courtroom during the trial.
The trial judge found that defendant’s Class 3 felony charges
were "very serious charges" and that his criminal history was
"significant." The judge also recalled that the complaining
witness was a "very young, very tiny Asian girl" who was
"petrified" of defendant during her testimony. The trial court
then concluded that the electronic security belt did not create
prejudice to the jury and was properly used to restrain defendant
at trial.
ANALYSIS
On appeal, defendant maintains that the trial court abused its
discretion in finding that it was necessary to restrain defendant
using an electronic security belt. Defendant argues that, in this
case, there was no showing of a "manifest need" for the restraint
at trial.
Shackling of the accused should be avoided if possible because
(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 (1977). An accused should never be placed in
restraints in the presence of a jury "unless there is a showing of
a manifest need for such restraints." People v. Martinez, 347 Ill.
3
App. 3d 1001 (2004).
A defendant may be shackled when there is a 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. Boose, 66 Ill. 2d at 266. The decision to
shackle a defendant is left to the discretion of the trial court,
and the court may select the physical restraints most suitable in
light of all the circumstances. People v. Allen, 222 Ill. 2d 340
(2006). An electronic safety belt is no less a restraint than
shackles or handcuffs. Allen, 222 Ill. 2d at 346-47. Thus, the
use of electronic safety belts in the courts of this state is
warranted "only where there has been a showing of manifest need for
the restraint." Allen, 222 Ill. 2d at 347.
The trial judge must state for the record his reasons for
allowing the defendant to remain shackled and must give the
defendant’s attorney an opportunity to present reasons why the
defendant should not be shackled. People v. Buss, 187 Ill. 2d 144
(1999). The possibility of prejudicing a jury is not the only
reason why courts should not allow shackling of an accused absent
the strong necessity for doing so. Even where there is no jury, an
unnecessary restraint is impermissible because it hinders the
defendant’s ability to assist his counsel, runs afoul of the
presumption of innocence, and demeans both the accused and the
judicial proceeding. In re Staley, 67 Ill. 2d 33 (1977).
Factors the trial court should consider in making a "manifest
need" determination include (1) the seriousness of the present
4
charge against the defendant, (2) the defendant’s temperament and
character, (3) the defendant’s age and physical characteristics,
(4) the defendant’s past record, (5) any past escapes or attempted
escapes by the defendant, (6) evidence of a present plan of escape
by the defendant, (7) any threats by the defendant to harm others
or create a disturbance, (8) evidence of self-destructive
tendencies on the part of the defendant, (9) the risk of mob
violence or of attempted revenge by others, (10) the possibility of
rescue attempts by any co-offenders still at large, (11) the size
and mood of the audience at trial, (12) the nature and physical
security of the courtroom, and (13) the adequacy and availability
of alternative remedies. Boose, 66 Ill. 2d at 266-67.
Here, defendant was charged with aggravated battery and
attempt robbery. While any felony is a serious crime, there was
nothing in the nature of the charges against this defendant that
indicated that his temperament or character made him more likely to
attempt escape or disrupt the proceedings. Defendant’s criminal
history included multiple offenses for theft and robbery but no
offenses that would indicate he posed any more of an escape risk
than any felony defendant with similar criminal histories. The PSI
states that defendant was 35 years old, stood 5'5" tall, and
weighed approximately 180 pounds at trial. Without more, these
physical characteristics do not appear oppressive or alarming, even
assuming defendant was physically fit. Moreover, nothing in the
record indicates that defendant planned an escape or was disruptive
during the proceedings. In addition, defendant did not commit the
5
crime with the aid of a co-defendant who might now come to his
rescue. There are no co-defendants at large. Further, the record
does not reveal any self-destructive or violent tendencies on the
part of the defendant. The parties agreed that there were no
spectators in the gallery. Thus, the size and mood of the audience
is not a factor to consider. Last, alternatives were available.
Defense counsel stated that prior to the use of the electronic
belts, the courtroom employed deputies to secure the courtroom.
Nothing suggests those deputies could no longer perform that duty.
Given these facts, we cannot say that the trial court’s conclusion
was proper.
The manifest need standard set forth in Boose is designed to
allow the use of restraints only in exceptional cases. Boose, 66
Ill. 2d at 265. There must be some connection between the factors
enumerated by the trial court and the belief that the accused may
try to escape or that he poses a threat to the safety of the
courtroom. See Boose, 66 Ill. 2d at 266, citing Kennedy v.
Cardwell, 487 F. 2d 101 (6th Cir. 1970). Without that connection,
Boose essentially becomes meaningless.
In this case, the State argues that factors such as the
violent nature of the charged offenses and defendant’s prior
convictions support the trial court’s ruling. Those factors,
however, were the same factors the trial court relied on when it
initially determined that the electronic security belt was
necessary. In defendant’s first appeal, this court held that the
consideration of those factors alone did not justify the use of
6
restraints. See Johnson, 356 Ill. App. 3d at 211, citing Boose, 66
Ill. 2d at 268. Nothing has changed. No further evidence was
presented to the trial court. We continue to find no meaningful
connection between the arguments offered and the manifest need to
restrain defendant at trial.
Thus, we find the trial court’s ruling to be an abuse of
discretion. Forcing defendant to wear an electronic security belt
without demonstrating a manifest need for the restraint violated
defendant’s right to a fair trial. Therefore, defendant must be
granted a new trial.
CONCLUSION
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., concurring.
JUSTICE HOLDRIDGE, dissenting:
I would remand for another hearing because I am still not
convinced that the trial judge applied the Boose analysis.
Although the Boose factors were argued by counsel on remand, the
judge said he had "always taken the position" that Boose did not
apply to electronic security belts and that the appellate court had
"ignore[d] the obvious difference between visible shackles and a
concealed security device." The judge expressed this view several
times, suggesting that appellate judges would agree if they had any
experience in the real world of criminal trials. The following
remarks are illustrative:
7
"The judges, who have no history in the court
system, who have addressed this under People versus
Martinez, want to look at this as an issue of well, it
really in their opinion offends the dignity of the
judicial process, which they have never been involved in.
I find it very interesting that they have never tried --
picked a jury, tried a case, tried an Aggravated Battery,
seen a victim shake on the witness stand, cry on the
witness stand, and yet they are going to tell the trial
court what and what doesn't offend the dignity of the
trial process.
So all that aside, I don't think -- I did everything
I could not to prejudice the jury. I have not heard
anything that would lead me to believe that the
defendant's abilities to assist his counsel during trial
was in any way impaired or restricted by the presence of
the device, and I take offense at any reference that the
use of the device offends the dignity of the judicial
process for the reasons I stated previously."
It appears that instead of following our instructions, the judge
used the remand hearing as a forum to express his disagreement with
the instructions. Although he mentioned two factors relevant to
Boose (seriousness of the charge and criminal history), he had
already done that when the case was before us on direct appeal.
I have been a trial judge. I have picked a jury. I have seen
crime victims testify. This experience actually accounts for my
8
belief that Boose violations should be remedied through
retrospective hearings instead of outright reversal. In People v.
Martinez, 347 Ill. App. 3d 1001 (2004), the evidence revealed that
the Will County sheriff had a policy of requiring all felony
defendants to wear an electronic security belt in the courtroom.
The trial judge deferred to this policy, stating that "he did not
want to disrupt the sheriff's standard operating procedure."
Martinez, 347 Ill. App. 3d at 1003. Such deferral was improper
because a trial judge must control his or her own courtroom
procedures. See People v. Allen, 222 Ill. 2d 340 (2006). The
purpose of a retrospective Boose hearing is to afford judges an
opportunity to fix this impropriety without undoing an entire
trial.
The instant judge obviously disagrees with our application of
Boose to electronic security belts. Nevertheless, as our Supreme
Court has held, Boose does apply. See Allen, 222 Ill. 2d 340.
Since I do not believe the judge has yet followed the applicable
standard, I would remand once again for compliance.
9