dissenting:
My esteemed colleagues have set sail upon previously uncharted waters, and I cannot accompany them. This is a case of first impression, and the majority opinion relies exclusively upon a case involving a trial before a jury, and no cases dealing with the question of physical restraints upon a defendant at a bench trial have been cited. The common law rule that a defendant is entitled to appear at trial without shackles is a corollary to the due process requirement that there must be no conduct which would inflame the passion prejudice of the jury against the accused by undermining the presumption of his innocence. Nevertheless, courts have recognized that it is within the discretion of the trial court to have a prisoner shackled when such a precaution appears necessary to prevent violence or escape. (See 21 Am. Jur. 2d Criminal Law §240 (1965).) As a court of review, we are here concerned only with whether there was a clear abuse of discretion. It is my view that, in the case of a hearing before the court, the trial judge should have considerable latitude in determining whether handcuffs are necessary for purposes of safety.
In the case at bar, the record, as amended by leave of this court, contains an affidavit of the trial judge stating that the hearing was held in a small courtroom containing at least four exits, including one exit which leads directly to an outdoor fire escape, and that at the outset of the hearing no bailiff was present. The court also expressed concern because of defendant’s past record of violence while in custody. In such a setting, I am not persuaded that the court acted in abuse of its discretion in refusing to permit the unshackling of this defendant.
There are valid reasons for distinguishing between bench trials and jury trials. A trial judge by training and experience is an impartial arbiter in our adversary system of justice. We should not presume that a judge will be prejudiced by seeing a defendant in handcuffs throughout a bench trial any more than we assume a judge to have been influenced by hearing improper evidence.
In all those jury trial cases where a question of shackles has arisen, courts have said that the trial judge must determine the need for physical restraints after considering the defendant’s past record, previous conduct, and other circumstances. In some cases, the judge has ordered that the shackled defendant enter and leave the courtroom at times when the jury is not present so as to make the restraints as inconspicuous to the jury as possible. (E.g., Kennedy v. Cardwell (6th Cir. 1973), 487 F.2d 101, cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S. Ct. 1976.) No reviewing court has ever suggested that the judge presiding at a jury trial would be prejudiced by seeing or knowing about the shackles and the reasons for requiring them. The judge presiding at a bench trial should be accorded no less confidence and respect.
In jury trial cases, some courts have required an “immediate necessity” for the use of shackles; in other words, there must be some reason based on the conduct of the accused at trial. (State v. Coursolle (1959), 255 Minn. 385, 97 N.W.2d 472, 75 A.L.R. 2d 755.) According to the more modern view, however, the court need not wait for a dangerous act at trial before permitting the prisoner to be shackled if the court has any reasonable basis for believing that security would be impaired. (Loux v. United States (9th Cir. 1968), 389 F.2d 911, cert. denied, 393 U.S. 867, 21 L. Ed. 2d 135; 89 S. Ct. 151. United States v. Roustio (7th Cir. 1972), 455 F.2d 366.) Thus a prisoner’s past attempts to escape were a sufficient basis for requiring shackles during a jury trial in Kennedy v. Cardwell, and no abuse of discretion was found.
Here, defendant was originally placed in a juvenile detention home because of his repeated attempts to run away, and he was later charged with aggravated battery involving, not just a “scuffle,” but the severe beating of a detention home official while in custody. The primary fact in dispute at the hearing was the extent of defendant’s participation in the beating. Thus, on the basis of defendant’s past record, the trial court had some reason to believe defendant presented a threat to the security of the court at the time the court ruled on the request that his handcuffs be removed. The finding that defendant merely aided and abetted the commission of the violent acts was not made until the court had heard all of the evidence. Obviously we have the advantage of hindsight not available to the trial court at the time the ruling was made.
The majority’s reliance on People v. Boose (3d Dist. 1975), 33 Ill. App. 3d 250, 337 N.E.2d 338, is misplaced. In Boose, the issue was whether a defendant at a competency hearing before a jury was entitled to the benefit of the rule against shackles that applies to criminal jury trials. In that case we held, as foUows:
“ [W]e believe that the reasons advanced in support of the rule, as set forth above, apply with equal force in a competency or fitness proceeding before a /««/."(Emphasis added.) 33 Ill. App.3d 250, 255.
Apparently the majority are of the opinion that, absent the possibility of jury prejudice, a defendant in handcuffs may nevertheless be denied a fair trial because of an impaired ability to communicate with counsel and effectively assist in his defense. This problem was considered in Illinois v. Allen (1970), 397 U.S. 337, 25 L. Ed. 2d 353, 90 S. Ct. 1057, where the Supreme Court discussed whether an obstreperous defendant should be bound and gagged during a jury trial. The court observed that a defendant’s ability to communicate with counsel is “greatly reduced when the defendant is in a condition of total physical restraint.” (Emphasis added.) (397 U.S. 337, 344, 25 L.Ed.2d 353, 359 90 S.Ct. 1057, 1061.) Here, we have neither bonds nor gags nor “total physical restraint” but rather handcuffs. Common sense compels me to conclude that handcuffs impose such a minimal burden on incourt communications between an accused and his attorney as to be worthy of little weight in this case.
Furthermore, the maintenance of “the dignity and decorum of the court and the judicial process” referred to by the majority must be balance against the safety and security of the court, and at this distance, I cannot fault a decision which preserves security at the expense of decorum where a jury is not present. In any event, matters of courtroom decorum rest within the sound discretion of the trial court. Illinois v. Allen; United States v. Roustio.
For the reasons stated, I must dissent from this opinion.