People v. Strickland

NO. 4-04-0218 Filed: 2/10/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
LARRY STRICKLAND, ) No. 03CF248
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
______________________________________________________________

PRESIDING JUSTICE TURNER delivered the opinion of the

court:

In September 2003, the State charged defendant, Larry

Strickland, with four counts of aggravated battery (Pub. Act 92-

841, '5, eff. August 22, 2002 (2002 Ill. Laws 3050, 3053) (amend-

ing 720 ILCS 5/12-4(b)(6) (West Supp. 2001))). After a January

2004 trial, a jury found defendant guilty as charged. At a March

2004 sentencing hearing, the trial court sentenced defendant to

three concurrent terms of four years' imprisonment to run consec-

utive to defendant's six other prison terms.

Defendant appeals, asserting (1) he was denied a fair

trial because he was handcuffed to a table during his jury trial

and (2) the trial court erred by not inquiring into his pro se

ineffective-assistance-of-counsel contention. We affirm.

I. BACKGROUND

On January 28, 2004, the trial court held a jury trial
on the charges against defendant. Before the trial and outside

the jury's presence, the following exchange took place:

"THE COURT: All right. Presently, you

have both hands--

THE DEFENDANT: Yes, sir.

THE COURT: --handcuffed.

THE COURT: I typically allow, unless

there is a reason not to--are you right-

handed or left-handed[?]

THE DEFENDANT: Left-handed.

THE COURT: Left-handed. All right. I

am going to direct that the correctional

officers free your left hand, but handcuff

your right hand to the table where we have an

eyebolt.

THE DEFENDANT: Yes, sir.

THE COURT: So that would allow you some

freedom with your left hand to--you have

papers there, I note, so you will have free-

dom of your left hand to look at your papers.

THE DEFENDANT: Yes, sir. Thank you.

Will I pick a jury today, or what?"

Also before trial, defendant presented a letter he had

written to authorities at the Pontiac Correctional Center (Cen-

- 2 -
ter) about problems he was experiencing. The trial court allowed

defendant to discuss the letter with his attorney, who then

explained to the court he was unaware of a manner in which to

introduce the letter as evidence at trial. The court allowed the

letter to be put in the record for appeal purposes only. Defen-

dant again insisted he wanted his problems with prison officials

brought out at trial and wanted to testify to those matters. The

court stated it would allow defendant to talk with defense

counsel some more.

The State presented the testimony of Bradley Knight, a

correctional officer at the Center; Gary Kuhse, a sergeant at the

Center; Anthony Harvey, who, at the time of the incident, was a

captain at the Center; Joyce Friel, a nurse at the Center; and

Karl Webber, a correctional officer in the Center's internal

affairs division. Defendant did not present any evidence.

Knight testified that on the morning of October 30,

2002, he was picking up breakfast trays at the Center when he

noticed a liquid substance coming from the cracks of defendant's

cell door. Knight then notified the command staff, and Harvey

and Kuhse responded. Kuhse ordered defendant to turn his back to

them so Kuhse could open the cuffing hatch and handcuff defen-

dant. When Kuhse opened the hatch and attempted to handcuff

defendant, defendant reached out with a toothpaste tube and

squirted an unknown liquid in their direction. The substance,

- 3 -
which smelled like a mix of feces and urine, hit Knight and

Harvey on their right arms as they turned away. Knight observed

that defendant's pulling away from Kuhse caused Kuhse's left ring

finger to get scratched on the top of the cuffing hatch. Kuhse's

finger was bleeding. After the incident, Knight went to the

Center's health-care unit and saw Friel.

Defense counsel cross-examined Knight about the loca-

tion of the cuffing hatch on the cell door and other aspects of

the door. He also asked questions regarding the cuffing proce-

dure and each officer's position in relationship to the door and

each other. Moreover, defense counsel inquired about how Kuhse's

finger was injured.

Harvey and Kuhse gave testimony similar to Knight's

regarding the October 30, 2002, incident. Kuhse stated his

finger was bleeding after his struggle with defendant in the

cuffing hatch. Harvey indicated some of the substance landed on

his right arm and right shirt sleeve. Defense counsel cross-

examined both witnesses, bringing out the discrepancies in the

officers' testimony about the incident's details and exploring

how defendant was able to squirt the substance out of his cell

directly at the officers.

Friel testified she examined all three officers at the

Center's health-care unit on October 30, 2002. Knight had a

foreign substance on his right arm, and thus she had him wash and

- 4 -
cleanse his arm. Kuhse had a cut on his wedding-ring finger,

which she cleansed and disinfected, and to which she applied a

triple antibiotic ointment. Harvey did not have any actual

exposure when he arrived at the Center so she just took his

vitals and checked him over.

Webber testified he investigated the October 30, 2002,

incident and talked to defendant on December 24, 2002. Defendant

explained he received a juice carton that was leaking with his

breakfast. He got angry about the leaky carton but did not talk

to an officer about it. Webber also testified he asked defendant

if he squirted the fecal matter on the officers as alleged, and

said defendant replied "yes, he did." Webber then asked defen-

dant what exactly was in the stuff he squirted, and defendant

replied "'it is something bad.'"

After the State's witnesses testified, the trial court

recessed the trial for lunch and allowed defendant to discuss

with defense counsel the matters to which defendant wanted to

testify. When the proceedings resumed, defendant stated he no

longer wanted to testify.

After hearing all of the evidence, the jury found

defendant guilty of all four charges. On March 10, 2004, the

trial court held a sentencing hearing at which defendant made an

oral posttrial motion, asserting an ineffective-assistance-of-

counsel claim. The court denied the motion. It then sentenced

- 5 -
defendant to three concurrent terms of four years' imprisonment

on the first three counts to run consecutive to defendant's

convictions in the following cases: (1) People v. Strickland,

No. 85-C-13416 (Cir. Ct. Cook Co.); (2) People v. Strickland, No.

92-CF-25 (Cir. Ct. Livingston Co.); (3) People v. Strickland, No.

94-CF-76 (Cir. Ct. Livingston Co.); (4) People v. Strickland, No.

94-CF-146 (Cir. Ct. Livingston Co.); (5) People v. Strickland,

No. 01-CF-250 (Cir. Ct. Livingston Co.); and (6) People v.

Strickland, No. 03-CF-177 (Cir. Ct. Livingston Co.). This appeal

followed.

II. ANALYSIS

A. Fair Trial

Defendant first argues he was denied a fair trial

because the trial court ordered one of his hands to be handcuffed

to the table during his jury trial. Defendant acknowledges he

did not object to being handcuffed at trial but asserts this

court should find the handcuffing resulted in plain error (134

Ill. 2d R. 615(a)). The application of the plain-error doctrine

and what should happen when plain error occurs are sources of

contention among our sister courts. Thus, we will provide a

thorough background of the case law in this area.

In People v. Boose, 66 Ill. 2d 261, 265, 362 N.E.2d

303, 305 (1977), the Supreme Court of Illinois found the shack-

ling of an accused should be avoided if possible because it (1)

- 6 -
tends to prejudice the jury against the accused, (2) restricts

the accused's ability to assist counsel during trial, and (3)

offends the dignity of the judicial process. However, the Boose

court recognized a defendant may be restrained where the court

reasonably believes (1) the defendant may try to escape, (2) the

defendant may pose a threat to the safety of the people in the

courtroom, or (3) restraint is necessary to maintain order during

the trial. Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305. The

determinations of whether to restrain a defendant and what

restraints are most suitable are within the trial court's discre-

tion, and a reviewing court will not overturn those decisions

unless the trial court abused its discretion. Boose, 66 Ill. 2d

at 266-67, 362 N.E.2d at 305-06.

In making the determination whether to restrain a

defendant, Boose directs the trial court to hold proceedings

outside the presence of the jury. During those proceedings, the

defense counsel should have the opportunity to present reasons

why the defendant should not be restrained, and the trial court

should state for the record the reasons for restraining the

defendant in the courtroom. Boose, 66 Ill. 2d at 266, 362 N.E.2d

at 305. Additionally, the Boose court provided a nonexclusive

list of 12 factors for the trial court to consider in making its

determination. Boose, 66 Ill. 2d at 266-67, 362 N.E.2d at 305-

06.

- 7 -
 That same year, our supreme court applied Boose to a

bench trial, noting the shackling of an accused without clear

cause jeopardizes the presumption of innocence's "value and

protection and demeans our justice." In re Staley, 67 Ill. 2d

33, 37, 364 N.E.2d 72, 73 (1977). In both Boose and Staley, the

supreme court affirmed the appellate courts' reversal of the

trial courts' judgments. Boose, 66 Ill. 2d at 269, 362 N.E.2d at

307; Staley, 67 Ill. 2d at 38, 364 N.E.2d at 74.

Two years later, the court addressed a defendant's

contention his conviction should be reversed because he appeared

before the venire in handcuffs, even though he did not object to

the handcuffs at that time. People v. Hyche, 77 Ill. 2d 229,

240-41, 396 N.E.2d 6, 12 (1979). Our supreme court concluded the

defendant had waived any error by failing to object to his

appearance in handcuffs and thus affirmed the trial court's

judgment. Hyche, 77 Ill. 2d at 241, 396 N.E.2d at 12. In

reaching that conclusion, it expressly distinguished Boose and

Staley, noting the defendants in those cases had objected to

appearing in handcuffs. Hyche, 77 Ill. 2d at 241, 396 N.E.2d at

12.

The Hyche court found guidance in the United States

Supreme Court's decision in Estelle v. Williams, 425 U.S. 501, 48

L. Ed. 2d 126, 96 S. Ct. 1691 (1976). Hyche, 77 Ill. 2d at 241,

396 N.E.2d at 12. There, without objection, the defendant

- 8 -
appeared before the jury in prison attire. Estelle, 425 U.S. at

502, 48 L. Ed. 2d at 129-30, 96 S. Ct. at 1692. The Estelle

Court began by recognizing the wearing of jail or prison attire

could possibly impair the presumption of innocence and found

compelling an accused to wear such attire violated the fourteenth

amendment. Estelle, 425 U.S. at 503-06, 48 L. Ed. 2d at 130-31,

96 S. Ct. at 1692-94. However, the Court concluded that "al-

though the State cannot, consistently with the Fourteenth Amend-

ment, compel an accused to stand trial before a jury while

dressed in identifiable prison clothes, the failure to make an

objection to the court as to being tried in such clothes, for

whatever reason, is sufficient to negate the presence of compul-

sion necessary to establish a constitutional violation."

Estelle, 425 U.S. at 512-13, 48 L. Ed. 2d at 135, 96 S. Ct. at

1697.

In People v. McCue, 175 Ill. App. 3d 762, 765-66, 530

N.E.2d 271, 273 (1988), the Third District followed Hyche and

concluded that since the defendants failed to object to being

handcuffed, they waived any alleged error that occurred by them

being handcuffed throughout their trial. The McCue court also

found, in the alternative, the trial court did not abuse its

discretion in ordering the defendants handcuffed based on the

Boose factors. McCue, 175 Ill. App. 3d at 766, 530 N.E.2d at

273-74.

- 9 -
 Despite its application of Hyche in McCue, the Third

District in People v. Doss, 347 Ill. App. 3d 418, 428, 807 N.E.2d

697, 705 (2004), held the trial court's decision to keep on the

defendant's leg shackles during the trial, to which the defendant

did not object, was plain error since it deprived the defendant

of a fair trial. There, the trial court had only indicated it

believed the jury could not see the shackles, which the Third

District found insufficient under Boose. The Doss court reversed

the defendant's conviction and remanded for further proceedings.

Doss, 347 Ill. App. 3d at 428, 807 N.E.2d at 705; see also

People v. Allen, 354 Ill. App. 3d 442, 446, 821 N.E.2d 335, 339

(2004), appeal allowed, 214 Ill. 2d 537, 830 N.E.2d 4 (2005) (No.

99977) (stun belt); People v. Brown, 356 Ill. App. 3d 1088, 1091,

828 N.E.2d 351, 354 (2005) (shackles).

In other cases where the defendant has failed to object

to the use of a stun belt at trial, the Third District has found

a violation of constitutional rights but concluded the cases

should be remanded to the trial court for a retrospective Boose

hearing. See People v. Johnson, 356 Ill. App. 3d 208, 211-12,

825 N.E.2d 765, 767-68 (2005); People v. Buckner, 358 Ill. App.

3d 529, 532, 534, 831 N.E.2d 676, 679-80 (2005).

In People v. Bennett, 281 Ill. App. 3d 814, 825-26, 666

N.E.2d 899, 906-07 (1996), the First District reversed the

conviction of a defendant, who was tried in shackles, under the

- 10 -
plain-error doctrine. However, there, the defendant had re-

quested the shackles be removed at trial but had forfeited the

argument on appeal by failing to raise it in a posttrial motion

(see People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130

(1988)). Bennett, 281 Ill. App. 3d at 823, 666 N.E.2d at 905.

In People v. Crutchfield, 353 Ill. App. 3d 1014, 1022,

820 N.E.2d 507, 515 (2004), the Fifth District declined to apply

the plain-error doctrine to a defendant's challenge to his

wearing a stun belt during trial because the record clearly

demonstrated the error did not contribute to his conviction.

There, like Bennett, the defendant had objected to the stun belt

at trial but had failed to raise the issue in a posttrial motion.

Crutchfield, 353 Ill. App. 3d at 1021, 820 N.E.2d at 514. The

Fifth District also reached the same conclusion in People v.

DuPree, 353 Ill. App. 3d 1037, 1043-44, 820 N.E.2d 560, 565-66

(2004), where the defendant forfeited his stun-belt challenge by

failing to object at trial.

After considering the aforementioned case law, we

decline to reverse defendant's conviction under the plain-error

doctrine. Unlike the Third District cases that have found plain

error, our supreme court has not applied Boose and Staley when a

defendant has failed to object to appearing before a jury in

restraints. See Hyche, 77 Ill. 2d at 241, 396 N.E.2d at 12. The

Hyche court indicates it is the State's compelling the defendant

- 11 -
to wear restraints before the jury that creates the constitu-

tional violation. Hyche, 77 Ill. 2d at 241, 396 N.E.2d at 12.

Thus, when a defendant fails to object to wearing restraints, the

presence of compulsion is negated, and a constitutional violation

has not been established. See Hyche, 77 Ill. 2d at 241, 396

N.E.2d at 12.

Moreover, we agree with the State that the United

States Supreme Court's recent decision in Deck v. Missouri, ___

U.S. ___, 161 L. Ed. 2d 953, 125 S. Ct. 2007 (2005), does not

warrant a different result. There, the defendant continuously

objected to wearing the shackles. Deck, ___ U.S. at ___, 161 L.

Ed. 2d at 960, 125 S. Ct. at 2010. Thus, the Deck Court did not

address whether a defendant's constitutional rights are violated

when the defendant does not object to the restraints at trial.

Even if Deck provides a defendant's presence at trial

in shackles without objection is a constitutional violation,

defendant has not established plain error here. First, the Deck

Court expressly states a defendant's due-process rights are

violated by "the use of visible restraints." (Emphasis added.)

Deck, ___ U.S. at ___, 161 L. Ed. 2d at 964, 125 S. Ct. at 2014.

In this case, the trial court noted defendant's left hand was

free and his right hand was handcuffed to an eyebolt attached to

the table. In its brief, the State asserts defendant fails to

argue and the record fails to show the single handcuff was

- 12 -
visible to the jury. In his reply brief, defendant does not

refute this contention. Under the plain-error doctrine, defen-

dant has the burden of proving an error occurred (see People v.

Herron, 215 Ill. 2d 167, 187, 830 N.E.2d 467, 480 (2005)) and

thus had the burden of demonstrating the handcuff was visible to

the jury.

Second, even if the handcuff was visible to the jury,

the State has proved "'beyond a reasonable doubt that the [shack-

ling] error complained of did not contribute to the verdict

obtained.'" Deck, ___ U.S. at ___, 161 L. Ed. 2d at 966, 125 S.

Ct. at 2015-16, quoting Chapman v. California, 386 U.S. 18, 24,

17 L. Ed. 2d 705, 710, 87 S. Ct. 824, 828 (1967). Here, the

evidence of defendant's guilt was overwhelming. See People v.

Kennedy, 150 Ill. App. 3d 319, 326, 501 N.E.2d 1004, 1009 (1986)

(finding that even if the defendant had not been wearing leg

irons, the jury would have found him guilty where the evidence

was overwhelming); see also People v. Barney, No. 4-04-0217

(February 10, 2006), ___ Ill. App. 3d ___, ___ N.E.2d ___.

Defendant was upset about a leaky juice carton and admitted to

Webber he had squirted the fecal matter on the officers. Harvey,

Kuhse, and Knight all testified Kuhse's finger was injured when

he struggled with defendant in the cuffing hatch. Friel con-

firmed the injury to Kuhse's finger and the substance on Knight's

arm.

B. Ineffective Assistance of Counsel

- 13 -
 Defendant also contends his case must be remanded

because the trial court failed to make an adequate inquiry into

his pro se ineffective-assistance-of-counsel allegation. Whether

the trial court made an adequate inquiry is a question of law,

and thus our review is de novo. See People v. Savage, 361 Ill.

App. 3d 750, 756, 838 N.E.2d 247, 252 (2005).

When a defendant raises pro se a posttrial ineffective-

assistance-of-counsel claim, the trial court may, when warranted,

appoint new counsel to assist the defendant with presenting his

claim. People v. Pope, 284 Ill. App. 3d 330, 333, 672 N.E.2d 65,

67 (1996); People v. Krankel, 102 Ill. 2d 181, 189, 464 N.E.2d

1045, 1049 (1984). Thus, when a defendant asserts such a claim,

the court must first conduct an "adequate inquiry" to determine

the factual basis for the claim. People v. Johnson, 159 Ill. 2d

97, 125, 636 N.E.2d 485, 497 (1994). If the court concludes the

claim lacks merit or pertains only to matters of trial strategy,

then new counsel is unnecessary. However, if the inquiry indi-

cates trial counsel's possible neglect of the case, then the

court should appoint new counsel. Pope, 284 Ill. App. 3d at 333,

672 N.E.2d at 67.

Therefore, we address "'whether the trial court con-

ducted an adequate inquiry' into the allegations." People v.

Peacock, 359 Ill. App. 3d 326, 339, 833 N.E.2d 396, 407 (2005),

quoting People v. Moore, 207 Ill. 2d 68, 78, 797 N.E.2d 631, 638

- 14 -
(2003). In conducting an inquiry, the trial court uses one or

more of the following methods: "(1) questioning the trial

counsel, (2) questioning the defendant, and (3) relying on its

own knowledge of the trial counsel's performance in the trial."

Peacock, 359 Ill. App. 3d at 339, 833 N.E.2d at 407.

Defendant's recitation of what occurred at his sentenc-

ing hearing is deficient. The following is a brief summary of

what actually took place. The trial court invited defendant to

talk about why he sought a trial in this case, and defendant

began by stating the following:

"Your Honor, I think it was a grave

misjustice that I was and that I have been

convicted. I don't think I had the represen-

tation. I don't think I had the proper coun-

sel to represent me. My counsel never asked

me anything about the case. We never talked

about any strategies about the case."

Defendant asserted he was being harassed and poisoned by prison

officers. He noted the things he believed he was being denied in

prison and again stated, "I am not being given the proper attor-

ney. I am not being represented properly by counsel."

Defendant later requested a motion for a new trial

based on ineffective assistance of counsel. He asserted his

attorney (1) did not communicate with him, except for asking him

- 15 -
if he would take three years; (2) failed to present evidence he

had a conflict with Center officials; (3) failed to show Friel

did not have a record on Harvey; and (4) failed to argue the

events could not have happened the way the officers testified

they did. The trial court acknowledged defendant's oral motion

for a new trial and denied it, noting it had recalled the trial.

Defendant contends his case is similar to People v.

Robinson, 157 Ill. 2d 68, 623 N.E.2d 352 (1993). There, the

trial court denied the defendant's motion without any inquiry at

all. Our supreme court stated "the trial court should have

afforded the defendant the opportunity to specify and support his

complaints." Robinson, 157 Ill. 2d at 86, 623 N.E.2d at 361.

Unlike Robinson, the trial court in this case did allow

defendant to explain why he thought his counsel was ineffective.

The court gave defendant ample opportunity to set forth and

support his ineffective-assistance-of-counsel claim. Contrary to

defendant's assertion, the court did not utterly fail to make an

initial inquiry into his claims.

Here, the trial court's inquiry into defendant's

ineffective-assistance-of-counsel claims was adequate. The court

allowed defendant to present his ineffective-assistance-of-

counsel claim and then relied on its own knowledge of the trial

to deny defendant's posttrial motion that raised the ineffective-

assistance-of-counsel claim. The court's reliance on its recol-

- 16 -
lection was adequate in this case where defendant's allegations

were refuted by the trial record. See People v. Young, 341 Ill.

App. 3d 379, 383, 792 N.E.2d 468, 472 (2003) (finding further

inquiry into the factual basis of defendant's pro se ineffective-

assistance claims was unnecessary where the claims related to

trial matters and the judge hearing the posttrial motion had

presided over the trial).

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

STEIGMANN and MYERSCOUGH, JJ., concur.

- 17 -