April 25 2008
DA 06-0294
IN THE SUPREME COURT OF THE STATE OF MONTANA
2008 MT 143
STATE OF MONTANA,
Plaintiff and Appellee,
v.
JOHN MICHAEL MERRILL,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC-05-031
Honorable David G. Rice, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jim Wheelis, Chief Appellate Defender; Shannon L. McDonald,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Hon. Mike McGrath, Montana Attorney General; Ilka Becker
Assistant Attorney General, Helena, Montana
Cyndee L. Peterson, Hill County Attorney; Gina Bishop, Deputy
County Attorney, Havre, Montana
Submitted on Briefs: October 31, 2007
Decided: April 25, 2008
Filed:
__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.
¶1 John Michael Merrill (Merrill) appeals from the judgment entered by the Twelfth
Judicial District Court, Hill County, on his convictions and sentences for the felony
offense of criminal endangerment and three misdemeanor offenses. We reverse and
remand for a new trial.
¶2 Merrill raises the following issues on appeal:
¶3 1. Did the District Court abuse its discretion in violation of Merrill’s right to due
process of law by granting a request from a law enforcement officer to restrain Merrill
with leg shackles during his jury trial?
¶4 2. Did the District Court abuse its discretion in denying Merrill’s proposed jury
instruction on negligent endangerment as a lesser included offense of criminal
endangerment?
¶5 3. Did the District Court err in imposing conditions on Merrill’s parole?
¶6 We conclude that Issue 1 is dispositive of this appeal and, consequently, do not
address Issues 2 and 3.
BACKGROUND
¶7 The State of Montana (State) charged Merrill by information with one felony and
eight misdemeanor offenses arising from a traffic stop and subsequent high-speed chase
involving Merrill and Montana Highway Patrol, Hill County Sheriff’s Department, Havre
Police Department and Rocky Boy’s Tribal Police officers. The State subsequently
dismissed five of the misdemeanor counts and the case proceeded to a jury trial on the
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charges of felony criminal endangerment and misdemeanor driving under the influence of
alcohol, eluding a peace officer and resisting arrest.
¶8 On the morning of trial, prior to voir dire, the parties met with the District Court in
the courtroom to discuss several matters. At the end of the discussion, defense counsel
requested that Merrill’s leg shackles be removed prior to trial. The District Court
observed that the law enforcement officer responsible for escorting Merrill to and from
the courtroom had requested that Merrill remain in shackles while in the courtroom and
made a record of the officer’s reasons. The court determined Merrill would remain
shackled during trial.
¶9 The jury convicted Merrill of all four charges. The District Court sentenced
Merrill on the convictions and entered judgment. Merrill appeals.
STANDARD OF REVIEW
¶10 We review a trial court’s decision to restrain a criminal defendant during trial to
determine whether the court abused its discretion. State v. Herrick, 2004 MT 323, ¶ 15,
324 Mont. 76, ¶ 15, 101 P.3d 755, ¶ 15.
DISCUSSION
¶11 Did the District Court abuse its discretion in violation of Merrill’s right to due
process of law by granting a request from a law enforcement officer to restrain Merrill
with leg shackles during his jury trial?
¶12 The due process clause of the United States Constitution and Article II, Section 17
of the Montana Constitution entitle criminal defendants to appear before a jury free of
shackles and other physical restraints. Herrick, ¶ 12 (citing Morgan v. Bunnell, 24 F.3d
49, 51 (9th Cir. 1994)), and ¶ 15. This right is of constitutional magnitude, but is not
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absolute. Therefore, a trial court’s decision to shackle a defendant during trial is not per
se unconstitutional. Herrick, ¶ 12.
¶13 We recently adopted a two-part test for addressing whether a trial court abused its
discretion in ordering that a defendant be shackled during trial. Herrick, ¶ 15. The first
prong requires that the trial court “must be persuaded by compelling circumstances that
some measure is needed to maintain the security of the courtroom . . . .” Herrick, ¶ 14.
In that regard, the trial court “‘has wide discretion to decide whether a defendant who has
a propensity for violence poses a security risk and warrants increased security
measures.’” Herrick, ¶ 15 (quoting Morgan, 24 F.3d at 51). The second prong of the test
requires a trial court to pursue less restrictive alternatives before imposing physical
restraints. Herrick, ¶ 14.
¶14 Merrill contends that the District Court abused its discretion in ordering that he
remain shackled during trial because the court’s decision failed to comply with either
prong of the two-part Herrick test. We agree that the District Court failed to satisfy the
first prong of the Herrick test and, because the Herrick test is written in the conjunctive,
we need not address the second prong.
¶15 In Herrick, the prosecution filed a written motion prior to trial requesting the
district court to allow additional security measures during trial based on the nature of the
charges against the defendant and his conduct while incarcerated after his arrest. The
State supported its motion with a brief outlining specific factual allegations justifying the
increased security and detailing the security measures it requested. Herrick, ¶ 7. The
State’s factual allegations included that, since his arrest, the defendant had been charged
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with two counts of possession of a deadly weapon; he had sent letters to the county
attorney and the United States District Attorney for Montana stating that a white powdery
substance in the letters was anthrax, as well as another letter threatening the lives of the
county attorney and the President of the United States; and he also had been charged with
felony intimidation since his arrest based on his communicating a telephone bomb threat
to a local attorney. Herrick, ¶ 21.
¶16 The defendant did not dispute the State’s factual allegations, but did challenge the
propriety of most of the requested additional security measures. Herrick, ¶ 8. The
district court held a hearing on the motion prior to voir dire and found, based on the
State’s undisputed allegations, that the defendant had a propensity to violence and
presented a danger to court personnel. Herrick, ¶¶ 9 and 21. The court granted the
State’s motion in part, tailoring the additional security measures to ensure the jury did not
observe the defendant in restraints. Herrick, ¶ 9. We affirmed on appeal, determining
the district court did not abuse its discretion in granting the State’s motion because the
undisputed facts—as alleged by the State and found by the district court—presented
sufficient compelling circumstances to support the court’s conclusion that some
additional security measures were needed and the court pursued the least restrictive
alternatives available by granting only part of the State’s requested security measures.
Herrick, ¶¶ 22-24.
¶17 In the present case, Merrill apparently was brought into the courtroom in leg
shackles. The record exchange regarding the shackling occurred as follows:
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[DEFENSE COUNSEL]: Your Honor, there is one matter. Would it be
possible to remove Mr. Merrill’s shackles?
THE COURT: No, I will not. Let me get it on the record. Officer Nugent,
you had indicated that you felt that leaving the shackles on Mr. Merrill is
appropriate. What is your reason for that?
OFFICER NUGENT: Just because in his past history he’s had some
difficulties with law enforcement, Your Honor.
THE COURT: And he’s presently in custody of the Department of Human
Services, correct?
OFFICER NUGENT: I believe so, yes.
THE COURT: He’s a jail inmate pending this trial, but upon any kind of a
conclusion of this matter, he would be returned to the State for custody?
OFFICER NUGENT: I believe so.
THE COURT: So he’s in custody . . . . I do this just as a matter of caution.
That’s why he is here and the jury is downstairs. Nobody will see his
shackles. The procedure would be that the jury would go out of the front,
before they are chosen. If he needs to go to the—at the point when the jury
is chose they—when they are gone, you can go out and use the bathroom.
If you decide to testify, you will come on and testify. So the way the
courtroom is set up nobody should see the shackles. That’s the best I can
do. I honor the officer’s thoughts here and with the facts, I’m going to
require that the shackles stay on the legs.
[DEFENSE COUNSEL]: I just wanted to express an objection. I do
believe that it’s possible, if Mr. Merrill is moving around that, even if it’s
involuntarily to adjust himself, or to be comfortable that someone in the
jury box on this end may see it.
THE COURT: I understand.
[DEFENSE COUNSEL]: And I believe it was in his last trial, down in
Justice Court, that he was not shackled.
THE COURT: All right. Well, he will be shackled here and we would—
obviously, Mr. Merrill, try to keep any jingling from happening, but I don’t
think it’s going to be that big of deal [sic] to the jury. I think we have taken
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pretty good precautions here to make sure restraints are not visible, or not
obvious.
¶18 As the exchange indicates, the initial request to keep Merrill shackled while in the
courtroom was not made by the prosecutor. The request to the District Court was made
by the law enforcement officer in charge of escorting Merrill to and from the courtroom.
In addition, the request had been made off the record and, apparently, outside the
presence of the parties. The only reasons provided by the officer to support his request
on the record were that Merrill had prior “difficulties with law enforcement” and, at the
trial court’s prompting, that Merrill not only was incarcerated in the jail on the current
charges, but also was in the custody of another State agency as the result of another
proceeding. The officer did not provide, and the District Court did not request, specific
facts to support the officer’s request. The prosecutor did not participate at all in the
exchange regarding Merrill’s shackling.
¶19 As stated above, before a trial court may order that a criminal defendant be
restrained during trial, the court “must be persuaded by compelling circumstances that
some measure is needed to maintain the security of the courtroom . . . .” Herrick, ¶ 14.
In Herrick, the State filed a pretrial motion for security measures during trial and
supported its request with specific factual allegations detailing the defendant’s violent
and threatening behaviors. Herrick, ¶ 7.
¶20 Here, the decision to shackle had been made off the record and out of the parties’
presence. Moreover, the limited information presented to the District Court simply did
not establish “compelling circumstances” for security measures. The officer’s cursory
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statement that Merrill previously had “difficulties with law enforcement” provides no
basis on which the District Court could determine Merrill had a propensity toward
violence, had ever been violent or otherwise posed a security risk. Indeed, the phrase
“difficulties with law enforcement” could mean mere prior arrests for non-violent
misdemeanor offenses or even contacts with law enforcement not resulting in arrest.
Similarly, the fact that Merrill was in the custody of a State agency as a result of a
separate proceeding, without more, cannot constitute a compelling circumstance that
some security measure in the courtroom is needed.
¶21 The State does not contend that the District Court’s decision comported with the
Herrick test. It does remind us—and properly so—that, in Herrick, we vested broad
discretion in trial courts deciding whether a defendant with a propensity for violence
poses a security risk warranting increased security measures. See Herrick, ¶ 15. As
Herrick states, however, an exercise of the court’s discretion must begin with “a
defendant who has a propensity for violence.” Even that initial basis for exercising broad
discretion is highly questionable here. Moreover, the ultimate decision must be based on
the factual information of record establishing compelling circumstances which persuade
the court that some measure is needed to maintain the security of the courtroom. That
factual information of record is simply absent here. Thus, we conclude the District Court
failed to comply with the first prong of the Herrick test and, as a result, abused its
discretion in ordering that Merrill remain shackled for his trial.
¶22 We observe that the State frames this issue as whether the District Court “abuse[d]
its discretion in denying Merrill’s request to remove his leg shackles during trial.” The
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State then asserts that the court did not abuse its discretion and notes that, although the
court’s decision to shackle Merrill during trial “is not supported by an in-depth, on-the-
record analysis,” Merrill failed to request either the District Court or the State to provide
any further reasoning or analysis. This argument is totally without merit.
¶23 As stated above, the due process clauses of the United States and Montana
Constitutions entitled Merrill to appear before the jury free of shackles or other physical
restraints. This right exists unless and until compelling circumstances persuade a trial
court that some added measure is necessary to maintain the security of the courtroom;
even then, a court must pursue less restrictive alternatives before imposing physical
restraints. A defendant has no obligation to prove the constitutional entitlement to be
unrestrained for trial; nor is it conceivable that a defendant is obligated to request the
State to come forward with additional argument and analysis to support his being
shackled.
¶24 The State also contends that other information contained in the record and known
to the District Court—such as the factual allegations underlying the current charges as set
forth in the affidavit in support of its motion for leave to file an information, as well as
Merrill’s criminal history—supported a determination that Merrill was both dangerous
and an escape risk, thus justifying the court’s decision to keep Merrill shackled during
trial. This argument, too, is totally without merit.
¶25 The factual allegations underlying the charges on which Merrill was about to be
tried were simply that—unproven allegations of criminal behavior of which Merrill was
presumed innocent. In addition, nothing of record establishes—or even suggests—that
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Merrill’s criminal history was brought to the District Court’s attention before or during
the limited exchange regarding shackling Merrill for trial. The constitutional right to be
free from restraints during trial cannot co-exist with allowing infringement of that right
based on unproven allegations or pure speculation.
¶26 We hold that the District Court abused its discretion in violation of Merrill’s right
to due process of law by granting a request from a law enforcement officer to restrain
Merrill with leg shackles during his jury trial.
¶27 Reversed and remanded for a new trial.
/S/ KARLA M. GRAY
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ BRIAN MORRIS
Justice Jim Rice dissenting.
¶28 I dissent from the Court’s reversal of Merrill’s conviction and order for a new
trial.
¶29 In Herrick, upon which the Court exclusively relies, we first noted the principle
offered by Herrick that “shackling, when observed by the jury, is inherently prejudicial,”
but concluded, in rejecting Herrick’s due process argument, that the case presented “no
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indication of any impact on the presumption of innocence” because efforts had been
taken to ensure “the restraints were not visible to the jury. Nothing of record shows or
even suggests . . . that jurors or potential jurors saw the shackles.” Herrick, ¶¶ 18-19.
We likewise rejected Herrick’s individual dignity argument, noting “[w]e again observe
that nothing of record indicates that jurors or potential jurors saw Herrick’s leg restraints
at any time.” Herrick, ¶ 35.
¶30 These facts, heavily emphasized in Herrick, are overlooked today. But as in
Herrick, there is nothing of record in this case which indicates that the jury saw Merrill’s
shackles. Merrill did not argue that the jury saw him in shackles in his opening brief and,
in his reply brief, argued that the jury “may” have seen him in shackles. Thus, the record
does not permit an “indication of any impact on the presumption of innocence.” Herrick,
¶ 19. Similar to this emphasis in Herrick, many other courts have likewise held that “[a]n
appellate court will not find error on the ground that the defendant was shackled unless it
is shown that the jury saw the shackles.” State v. McMurtrey, 664 P.2d 637, 642 (Ariz.
1983) (citing cases).
¶31 On this basis—that the record is insufficient to factually support Merrill’s claim—
I would affirm.
/S/ JIM RICE
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