State v. Brawley

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STATE OF CONNECTICUT v. MICHAEL BRAWLEY
(SC 19441)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued December 15, 2015—officially released June 14, 2016

Christopher N. Parlato, for the appellant (defendant).
Denise B. Smoker, senior assistant state’s attorney,
with whom, on the brief, were Maureen Platt, state’s
attorney, and Jason Germain, senior assistant state’s
attorney, for the appellee (state).
 Opinion

PALMER, J. The sole issue raised by this certified
appeal is whether the Appellate Court properly con-
cluded that the defendant, Michael Brawley, is not enti-
tled to a new trial even though the record provides no
support for the ruling of the trial court requiring that
the defendant remain shackled during his criminal trial.
Although we agree with the defendant that he should
not have been shackled throughout the trial, he has
failed to establish that he was harmed by the shackling
because, so far as the record reveals, the jury never
saw the restraints. Accordingly, we affirm the judgment
of the Appellate Court.
For purposes of this appeal, only a brief summary of
the relevant facts and procedural history is necessary.
In July, 2008, the defendant was apprehended for his
alleged role in a series of burglaries in the town of
Naugatuck, the purpose of which was to obtain money
and an M-4 machine gun. Thereafter, the defendant was
charged with multiple counts of burglary in the first
degree and conspiracy to commit burglary in the first
degree, and one count each of kidnapping in the first
degree, conspiracy to commit kidnapping in the first
degree, assault in the second degree, carrying a pistol
without a permit, and criminal possession of a firearm.
On September 24, 2009, the defendant entered a plea
of not guilty as to all counts and elected to be tried by
a jury except on the charge of criminal possession of
a firearm, for which he elected a court trial. At the start
of the first day of the evidentiary portion of the trial,
defense counsel moved to have the defendant’s shack-
les ‘‘removed predicated on good behavior.’’ The trial
court denied the motion, stating that ‘‘the standard pro-
cedure is to leave shackles on during trial.’’ The trial
court further explained that its standard procedure is
to remove the shackles ‘‘only during . . . jury selection
when a juror is in the back row . . . .’’ The trial court
made no additional statements or findings regarding
the shackling, and the issue did not arise again at any
point during the defendant’s trial. Following a six day
trial, the jury found the defendant guilty on all of the
counts that had been tried to the jury, and the trial
court found the defendant guilty of criminal possession
of a firearm. The trial court rendered judgment in accor-
dance with the jury’s verdict and the court’s finding,
and sentenced the defendant to a total effective term
of thirty years imprisonment.
The defendant appealed from the judgment of the
trial court to the Appellate Court, which affirmed the
trial court’s judgment in a memorandum decision. State
v. Brawley, 153 Conn. App. 903, 100 A.3d 62 (2014).
Thereafter, we granted the defendant’s petition for cer-
tification to appeal, limited to the following issue: ‘‘Did
the Appellate Court properly affirm the trial court’s
determination that the defendant would be required to
remain shackled throughout the guilt phase of the trial?’’
State v. Brawley, 315 Conn. 917, 107 A.3d 412 (2015).
Following oral argument before this court, and in
accordance with Practice Book § 60-2,1 we directed the
trial court to ‘‘inform this court whether the jury . . .
was able to observe, or otherwise was aware, that the
defendant was wearing shackles during trial.’’ We fur-
ther directed the trial court to ‘‘state (1) the basis of
its knowledge in that regard, and (2) the kind or type
of shackles at issue, that is, leg irons, belly chain or
the like.’’ In its response to our order, the trial court
first explained that, because ‘‘the trial in question took
place [more than] six years ago,’’ it could not ‘‘state with
certainty from its recollection what type of shackles the
defendant wore or whether the shackles worn by the
defendant were visible to the jury.’’ The court also
stated, however, that ‘‘it [was] the court’s strong belief
that the defendant wore leg shackles only and that they
were not visible to the jury.’’ In support of this belief,
the court observed that, ‘‘over its eighteen years of
experience, it [could not] . . . recall presiding over any
jury trial in which a party has worn a belly chain or
the like.’’ With regard to whether the jury witnessed the
defendant in shackles, the trial court further explained
that, as a general matter, ‘‘it believes firmly in taking
every measure to prevent the jury from doing so,’’ and,
to that end, the court’s standard procedure is to ensure
that a defendant’s shackles are concealed by having a
curtain placed around the defense table so that the
jury cannot see the defendant’s legs, and by having the
defendant seated at the table whenever the jury enters
or exits the courtroom. Finally, the trial court stated
that its review of the jury charge revealed ‘‘that the
court made no mention of shackles, which the court
would normally have mentioned if the jury had seen
the defendant’s shackles, either inadvertently or as a
result of the court’s orders.’’ Accordingly, the trial court
concluded that there was ‘‘every reason to believe that
the court prevented the jury from seeing the defendant
in shackles and no evidence to support the contrary
belief.’’
On appeal to this court, the defendant claims, con-
trary to the conclusion of the Appellate Court, that,
because the trial court failed to find that the use of
restraints on the defendant during trial was reasonably
necessary, its decision compelling him to remain shack-
led violated his constitutional right to a fair trial.
Although conceding that the trial court did not provide
any legitimate reason for the shackling, the state argues
that the impropriety was harmless because the record
is devoid of any evidence that the jury saw or otherwise
knew that the defendant was shackled. We agree with
the state.
We begin our review of the defendant’s claim by
setting forth the legal principles that govern our analy-
sis. It is well established that, ‘‘[a]s a general proposi-
tion, a criminal defendant has the right to appear in
court free from physical restraints. . . . Grounded in
the common law, this right evolved in order to preserve
the presumption favoring a criminal defendant’s inno-
cence, while eliminating any detrimental effects to the
defendant that could result if he were physically
restrained in the courtroom. . . . The presumption of
innocence, although not articulated in the [c]onstitu-
tion, is a basic component of a fair trial under our
system of criminal justice. . . . Nonetheless, a defen-
dant’s right to appear before the jury unfettered is not
absolute. . . . A trial court may employ a reasonable
means of restraint [on] a defendant if, exercising its
broad discretion in such matters, the court finds that
restraints are reasonably necessary under the circum-
stances.’’ (Citation omitted; internal quotation marks
omitted.) State v. Webb, 238 Conn. 389, 454–55, 680
A.2d 147 (1996). Despite the breadth of that discretion,
however, ‘‘[t]he law has long forbidden routine use of
visible shackles during the guilt phase; it permits a
[s]tate to shackle a criminal defendant only in the pres-
ence of a special need.’’ Deck v. Missouri, 544 U.S. 622,
626, 125 S. Ct. 2007, 161 L. Ed. 2d 953 (2005); see also
United States v. Haynes, 729 F.3d 178, 188 (2d Cir.
2013) (‘‘a defendant may not be tried in shackles unless
the trial judge finds on the record that it is necessary
to use such a restraint as a last resort to satisfy a
compelling interest’’).
‘‘In order for a criminal defendant to enjoy the maxi-
mum benefit of the presumption of innocence, our
courts should make every reasonable effort to present
the defendant before the jury in a manner that does
not suggest, expressly or impliedly, that he or she is a
dangerous character whose guilt is a foregone conclu-
sion. . . . The negative connotations of restraints, nev-
ertheless, are without significance unless the fact of the
restraints comes to the attention of the jury.’’ (Internal
quotation marks omitted.) State v. Webb, supra, 238
Conn. 455. ‘‘The defendant bears the burden of showing
that he has suffered prejudice by establishing a factual
record demonstrating that the members of the jury
knew of the restraints.’’ Id.; see also State v. Tweedy,
219 Conn. 489, 507 n.14, 594 A.2d 906 (1991) (‘‘[a]lthough
defense counsel claimed at trial that the defendant’s
restraints were visible from the jury box, he did not
create a record to substantiate that claim by making
an appropriate offer of proof’’); State v. Woolcock, 201
Conn. 605, 616–17, 518 A.2d 1377 (1986) (because record
contained no evidence that jury was aware of defen-
dant’s shackles, ‘‘[t]he [defendant] has not carried his
burden of providing an appellate record [that] supports
his claim of error’’); State v. Williams, 195 Conn. 1, 10,
485 A.2d 570 (1985) (‘‘the record does not indicate . . .
[and] the defendant [does not] claim that any offer of
proof was made as to whether the jurors could or did
view the restraints when on the defendant’’).
When, however, ‘‘a court, without adequate justifica-
tion, orders [a] defendant to wear shackles that will be
seen by the jury, the defendant need not demonstrate
actual prejudice to make out a due process violation.
The [s]tate must prove beyond a reasonable doubt that
the [shackling] error complained of did not contribute
to the verdict obtained.’’ (Emphasis added; internal quo-
tation marks omitted.) Deck v. Missouri, supra, 544
U.S. 635.
Finally, ‘‘[i]n reviewing a shackling claim, our task is
to determine whether the court’s decision to employ
restraints constituted a clear abuse of discretion. . . .
While appellate review is greatly aided when a court
develops the record by conducting an evidentiary hear-
ing concerning the necessity for restraints, such a hear-
ing is not mandatory. . . . A record in some fashion
disclosing the justification for using restraints, how-
ever, is essential to meaningful appellate review of a
shackling claim. . . . This is particularly so because
of the potential for prejudice in the use of shackles.
. . . Accordingly, a trial court must ensure that its rea-
sons for ordering the use of restraints are detailed in the
record.’’2 (Citations omitted; internal quotation marks
omitted.) State v. Tweedy, supra, 219 Conn. 506.
Turning to the present case, we note that the record
indicates that the trial court ordered the defendant to
remain shackled during trial in accordance with its
‘‘standard procedure . . . .’’ To the extent that the trial
court’s ‘‘standard procedure’’ represents a general pol-
icy of the court favoring the use of leg restraints at trial,
even in the absence of a showing that such restraints
are necessary, that policy violates the principle that
restraints may be used only when there is particularized
need to do so, and only when that need is reflected in
the record.
Nor is there anything in the record of the present
case to suggest that restraining the defendant was rea-
sonably necessary under the circumstances. Although
the defendant had been charged with serious crimes of
violence, there is nothing in the record to establish
that he was a flight risk, that he had exhibited serious
behavioral issues or that he otherwise posed a danger
to the security of the people in the courtroom. But cf.
Sekou v. Warden, 216 Conn. 678, 692–93, 583 A.2d 1277
(1990) (concluding that, notwithstanding trial court’s
failure to articulate its reasons for restraining petitioner
at his criminal trial, record ‘‘amply demonstrate[d]’’ that
nature and duration of restraints employed were rea-
sonably necessary due to petitioner’s ‘‘history of insub-
ordination and violence in penal institutions, which
included an attack on a prison guard with a knife, [his]
participation in a prison rebellion,’’ and his destruction
of prison property). In the absence of a showing that
the defendant posed a flight or safety risk, there simply
was no reason to have him shackled.
Nevertheless, to establish that he was deprived of
his right to a fair trial, the defendant, in addition to
showing that he was restrained without sufficient
cause, also must provide evidence demonstrating that
the jury actually saw or otherwise was aware of his
restraints.3 See, e.g., State v. Webb, supra, 238 Conn.
455. There is no dispute that the defense did not make
any offer of proof at trial with respect to whether the
jury could or did see the restraints. In fact, defense
counsel never renewed or amplified his initial objection
after the trial court denied his motion to have the shack-
les removed. Furthermore, our review of the record
reveals no evidence to suggest that the jury actually
saw or otherwise knew of the defendant’s shackles. In
addition, according to the trial court’s rectification of
the record, the defendant always was seated at the
defense table before the jury entered, and he remained
there until after the jury left the courtroom. Finally, the
fact that the trial court could not recall presiding over
a single case in which a jury had been able to observe a
defendant in restraints strongly supports the conclusion
that the jury in the present case did not see the defen-
dant’s shackles. On the present record, therefore, the
defendant has failed to establish that the trial court’s
impropriety in having him shackled during his trial
abridged his presumption of innocence.4
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
Practice Book § 60-2 provides that a reviewing court may, on its own
motion, ‘‘(1) order a [trial] judge to take any action necessary to complete
the trial court record for the proper presentation of appeal . . . .’’
2
We note that the aforementioned principles have long been reflected
in our rules of practice. Specifically, Practice Book § 42-46 provides: ‘‘(a)
Reasonable means of restraint may be employed if the judicial authority
finds such restraint reasonably necessary to maintain order. If restraints
appear potentially necessary and the circumstances permit, the judicial
authority may conduct an evidentiary hearing outside the presence of the
jury before ordering such restraints. The judicial authority may rely on
information other than that formally admitted into evidence. Such informa-
tion shall be placed on the record outside the presence of the jury and the
defendant given an opportunity to respond to it.
‘‘(b) In ordering the use of restraints or denying a request to remove them,
the judicial authority shall detail its reasons on the record outside the
presence of the jury. The nature and duration of the restraints employed
shall be those reasonably necessary under the circumstances. All reasonable
efforts shall be employed to conceal such restraints from the view of the
jurors. Upon request, the judicial authority shall instruct the jurors that
restraint is not to be considered in assessing the evidence or in the determina-
tion of the case.’’
3
The defendant contends that, when a trial court makes an erroneous
decision to restrain a defendant, and the record in the case is silent as to
whether the restraints were visible to the jury, the state, rather than the
defendant, has the burden of establishing beyond a reasonable doubt that
the defendant’s restraints were not seen by the jury. In support of his
contention, the defendant relies on United States v. Banegas, 600 F.3d 342
(5th Cir. 2010), in which the United States Court of Appeals for the Fifth
Circuit concluded that requiring the defendant to prove that his restraints
were visible to the jury in cases in which the record is silent on the matter
‘‘would create the unjust result that, when the record is sparse as to the
record to prove the negative fact of shackle visibility before the government
would have to take up its burden of proving the absence of prejudice.’’ Id.,
347. For the following reasons, we are not persuaded by the defendant’s
argument.
In reaching its conclusion, the court in Banegas noted that placing the
burden on a defendant ‘‘would significantly alter the burden of proof articu-
lated [by the United States Supreme Court] in Deck [v. Missouri, supra, 544
U.S. 635].’’ United States v. Banegas, supra, 600 F.3d 347. A review of the
United States Supreme Court’s decision in Deck, however, convinces us that
the court in Banegas misinterpreted the holding in Deck.
In Deck, the petitioner, Carman Deck, was convicted of murdering and
robbing an elderly couple. Deck v. Missouri, supra, 544 U.S. 624–25. On
appeal, his death sentence was set aside, and the Missouri Supreme Court
ordered a new sentencing proceeding. Id., 625. During that new sentencing
proceeding, Deck was shackled with leg irons, handcuffs, and a belly chain.
Id. Despite counsel’s objection to the restraints, the trial court declined to
have them removed, explaining that Deck ‘‘[had] been convicted and [would]
remain in [leg irons] and a belly chain.’’ (Internal quotation marks omitted.)
Id. The penalty phase proceeded with Deck in restraints, and he again was
sentenced to death. Id. Deck appealed his death sentence, arguing that his
shackling violated both Missouri law and the United States constitution. Id.
The Missouri Supreme Court rejected that argument and upheld Deck’s
death sentence. Id., 625–26.
On appeal to the United States Supreme Court, the state of Missouri
claimed that the Missouri Supreme Court properly had found that (1) the
record lacked evidence that the jury saw the restraints, (2) the trial court
acted within its discretion, and (3) the defendant did not demonstrate that
he had suffered prejudice. Id., 634. The United States Supreme Court rejected
these arguments. Id., 634–35. With respect to the first contention, the court
determined that, contrary to Missouri’s assertion, the record in the case
‘‘[made] clear that the jury was aware of the shackles.’’ Id., 634. With regard
to the second argument, the court concluded that the record ‘‘contain[ed]
no formal or informal findings’’ explaining the trial court’s reasons for
imposing the requirement of shackles beside ‘‘the fact that Deck already
[had] been convicted.’’ (Internal quotation marks omitted.) Id. On the basis
of its rejection of the two foregoing arguments, the court rejected Missouri’s
final argument, concluding that, when ‘‘a court, without adequate justifica-
tion, orders [a] defendant to wear shackles that will be seen by the jury,
the defendant need not demonstrate prejudice to make out a due process
violation. The [s]tate must prove beyond a reasonable doubt that the [shack-
ling] error complained of did not contribute to the verdict obtained.’’ (Empha-
sis added; internal quotation marks omitted.) Id., 635.
Thus, Deck makes clear that a heightened burden falls on the state when
the unwarranted restraints are visible to the jury, and not when, as in
Banegas, the record is silent on the matter. Accordingly, we disagree with
the conclusion that the court reached in Banegas. We further note that our
understanding of the United States Supreme Court’s holding in Deck is
consistent with that of other federal and state courts that have examined
the issue. See, e.g., Mendoza v. Berghuis, 544 F.3d 650, 654 (6th Cir. 2008)
(‘‘Deck’s facts and holding . . . concerned only visible restraints at trial.
The [United States] Supreme Court was careful to repeat this limitation
throughout its opinion.’’ [Emphasis omitted.]), cert. denied, 556 U.S. 1188,
129 S. Ct. 1996, 173 L. Ed. 2d 1096 (2009); see also Ochoa v. Workman, 669
F.3d 1130, 1145 (10th Cir.) (‘‘it is the potential impact on the jury of visible
restraints that implicates the fundamental fairness of a jury trial proceed-
ing’’), cert. denied, U.S. , 133 S. Ct. 321, 184 L. Ed. 2d 190 (2012);
People v. Letner, 50 Cal. 4th 99, 155, 235 P.3d 62, 112 Cal. Rptr. 3d 746 (2010)
(Deck did not support contention that prosecution was required to disprove
visibility when there was no evidence in record that jury observed defendant
wearing shackles), cert. denied, 563 U.S. 939, 131 S. Ct. 2143, 179 L. Ed. 2d
897 (2011), and cert. denied sub nom. Tobin v. California, 563 U.S. 939,
131 S. Ct. 2097, 179 L. Ed. 2d 897 (2011); Hoang v. People, 323 P.3d 780,
785–86 (Colo.) (when restraints are visible to jurors, prosecution bears
burden to prove harmless error, but when it is not apparent from record
that jury had observed shackles, defendant must demonstrate visibility),
cert. denied, U.S. , 135 S. Ct. 233, 190 L. Ed. 2d 175 (2014).
4
Of course, the defendant may seek to establish that the jury did, in
fact, observe him in shackles in connection with a petition for a writ of
habeas corpus.