specially concurring:
While I concur, I write separately. Because the majority did not discuss the facts leading up to defendant’s conviction, I will do so here.
The record shows that on the third day of trial, before defendant took the witness stand in his own defense, defense counsel informed the court that defendant was wearing an electronic security belt. Counsel requested that the belt be removed. He noted that defendant had not been misbehaving in court, but he was acting a little shaky. Counsel attributed defendant’s shakiness to his medical circumstances and argued that a shaky gesture could be misinterpreted by security personnel as a signal which could result in defendant’s being shocked in front of the jury. Counsel also expressed his own apprehension about sitting next to defendant in the event the device were activated. The prosecutor stated that he had not noticed the belt, and he felt certain that the jurors were unaware that it was being worn. The prosecutor objected to removing the belt if the sheriffs office deemed it a necessary security measure. The prosecutor commented that the sheriffs deputy was in the courtroom; however, the officer was not called to testify or explain why the belt was being used.
Before ruling on defendant’s motion, the judge observed that defendant had prior convictions involving aggressive conduct and that the belt, unlike handcuffs or shackles, did not give the appearance that defendant was in custody. The judge stated that no one wearing the device had ever been shocked in his courtroom. He believed that the belt served as a reasonable deterrent to “any kind of acting out.” Accordingly, defendant’s motion to remove the belt was denied.
The State’s evidence established that defendant entered a Subway restaurant in Bolingbrook on June 6, 2001, around 6 p.m. and stayed until it closed at 9 p.m. Alpha Patel testified that she had started working at the restaurant only a week earlier, and she was working alone in the restaurant that evening. She said that while she was cleaning up at closing time, defendant grabbed her mouth and throat from behind and pushed her into the washroom. He demanded money and the tape from the restaurant’s video surveillance system. Patel screamed, alerting employees of the business adjoining the restaurant, who called the police. Defendant dragged Patel to the back room of the restaurant, where he ordered her to give him identification documents from her purse and then ordered her to open the cash register.
When Bolingbrook police arrived, they found Patel behind the counter crying. She was trying to push buttons on the cash register. She indicated that there was a man in the back. As the officers approached the door marked “employees only” that led to the area behind the counter, defendant stepped or jumped through the door from the employee area. Police ordered defendant to the floor and then handcuffed him. Once Patel was interviewed, defendant was arrested and removed from the building. Patel’s social security card and driver’s license were found on the floor of the back room. Patel also authenticated photographs of scratches on her neck which she says she received in the attack.
Defendant testified that he was waiting in the restaurant for his girlfriend. He said Patel started screaming and flailing her arms around when he exited the public washroom around 9 p.m. Defendant said he grabbed Patel by the arms to calm her down and protect himself. He put his hand over her mouth to stop her screaming, but denied grabbing her neck. He never explained his presence in the “employees only” area behind the counter. Defendant denied that he tried to rob Patel.
Based on the evidence, the jury found defendant guilty of attempted robbery and aggravated battery, as charged.
Electronic Security Belt
On appeal, defendant first argues that he is entitled to a new trial because the trial court erred in denying his request to remove the electronic security belt before he testified. Defendant contends that the trial court’s determination, based solely on defendant’s prior convictions for offenses involving violence, cannot be sustained under the “manifest need” test adopted for physical restraints in People v. Boose, 66 Ill. 2d 261, 362 N.E.2d 303 (1977). The State responds that (1) the belt is not a “restraining device,” (2) the court did not abuse its discretion in ruling on defendant’s request, or (3) any error was harmless. I find no error.
The question presented in Boose was whether the trial court abused its discretion in denying a request to remove shackles based solely on the violent nature of the charges for which the defendant was being prosecuted. In its analysis, our supreme court initially observed that shackling should generally be avoided because the practice (1) prejudiced the jury, (2) restricts the defendant’s ability to assist counsel during trial, and (3) offends the dignity of the judicial process. Boose, 66 Ill. 2d 261, 362 N.E.2d 303. The court noted, however, that a defendant may be shackled if there is a “manifest need” for the shackling, such as reason to believe the defendant might escape, a threat to the safety of the occupants of the courtroom or the need to maintain order in the courtroom.
The Martinez court, in a case of first impression in this state, concluded that concealed security belts were no different than shackles and therefore subject to the “manifest need” analysis set forth in Boose. People v. Martinez, 347 Ill. App. 3d 1001 (2004). While I agree that the trial judge must not totally abdicate issues of courtroom security to the sheriff, I believe that the Martinez decision ignores the obvious difference between visible shackles and a concealed security belt. For example, how can a concealed security belt prejudice a jury?
In this case, there is nothing in the record to indicate that even defendant’s attorney was aware defendant was wearing a security belt until the third day of trial when defendant brought it up before he testified. The security belt would not restrict his movement and would not impart any prejudice to the jury or trier of fact. Furthermore, I find the argument that the security belt made the defendant nervous to be without merit. Had the defendant stated that he was afraid if he moved improperly a deputy would shoot him, would the judge be required to disarm the court deputy? The stringent Boose rationale makes sense when applied to visible shackles; it simply fails when applied to concealed security belts.
The electronic security belt provides a nonlethal method to subdue a person, reducing the likelihood that police officers would be required to use deadly force in a courtroom. The reduced possibility of the use of deadly force not only benefits the defendant, but everyone else in the courtroom who would stand the risk of being struck by an errant bullet.
One member of the Martinez majority characterizes security belts as “draconian restraints” that should be banned in Illinois, citing the allegation that the use of the belt can lead to “immediate and uncontrollable defecation and urination.” Martinez, 347 Ill. App. 3d at 1006 (McDade, J., specially concurring). Assuming the truth of that allegation, for the sake of argument, again, the security belt is a nonlethal way to restrain someone, reducing the likelihood of police having to use firearms in a courtroom, which is a good thing, not a bad thing. Let me assure the court that when bullets start flying, feces and urine are rarely far behind; gunshot victims routinely lose control of their bowels and bladders.
The suggestion that security belts be banned in Illinois comes at a time when courtrooms are becoming more and more crowded and funds available for courthouse security are either inadequate or, in some cases, nonexistent. Anyone considering outlawing concealed security belts should consider not only trials, but also arraignments. It is not unusual to have 20 or more criminal defendants brought into a courtroom for arraignment. One or more of those defendants may have multiple friends in the courtroom. This scenario creates the potential for a very violent and dangerous situation, should someone decide to use the courthouse as the place to escape custody. A security belt could also deter or prevent the wearer from trying to disarm a courtroom deputy. The security belt on the defendant goes a long way toward eliminating the risk that anyone would try to help him escape the sheriffs custody while in court. This reduces the chance of violence to everyone in the courthouse, including the defendant. It also decreases the likelihood that deadly force would have to be exerted.
The trial judge in this case, who sits, not in the ivory tower of a court of review, but in a busy and often overcrowded courtroom in one of the busiest courthouses in the state, noted that the presence of the security belt served as a reasonable deterrent to any kind of acting out and yet, unlike handcuffs or shackles, did not give the appearance that the defendant was in custody. In this case, unlike the Martinez case, it is clear that the trial judge exercised his discretion with respect to the security belt, albeit not through a Boose analysis, and determined that the security belt should not be removed.
Here, the trial judge had previously granted defendant’s motion that he not be required to wear handcuffs at trial. The trial judge was aware of and noted the defendant’s history of convictions for violent crimes, including robbery and aggravated robbery, as well as the violent nature of the crimes for which defendant was currently standing trial.
I would hold that the trial judge has the discretion to allow the use of concealed electronic security belts on criminal defendants during trial. I find no abuse of that discretion here. There is not a hint that the use of the electronic security belt here in any way deprived defendant of his right to a fair trial.
I further agree with the State’s position that, even assuming that the court’s decision denying removal of the belt was error, it was harmless. See Martinez, 347 Ill. App. 3d at 1006 (Slater, J., dissenting). See also People v. DuPree, 353 Ill. App. 3d 1037 (2004); People v. Crutchfield, 353 Ill. App. 3d 1014 (2004). Notwithstanding defendant’s denial of any wrongdoing, the State’s evidence overwhelmingly established defendant’s guilt in the attack on Patel and the attempted robbery of the restaurant. I note that at the outset of the trial, the court granted defendant’s motion in limine excluding any evidence of defendant’s prior convictions for robbery and aggravated robbery. Defendant testified on his own behalf and admitted that he grabbed Ms. Patel and even put his hands over her mouth to keep her from screaming, but denied that he intended to injure her or to rob the restaurant. After this testimony, the prosecutor did not ask the court to revisit its decision on defendant’s motion in limine. I have no doubt that had the prosecution done so, the court would have reversed its ruling and allowed the prior convictions as evidence of intent. People v. Thingvold, 145 Ill. 2d 441, 584 N.E.2d 89 (1991); People v. Abraham, 324 Ill. App. 3d 26, 753 N.E.2d 1219 (2001).
Defendant’s right to a fair trial was scrupulously preserved in this case. Based on the evidence that was before them, no fair-minded jury would have voted to acquit. People v. Carlson, 92 Ill. 2d 440, 442 N.E.2d 504 (1982).
In light of the differing views of appellate judges throughout the state on this important issue, our supreme court will no doubt one day resolve the issue. In the meantime, even though I would prefer to affirm based on the reasoning of the dissent in Martinez, 347 Ill. App. 3d at 1006 (Slater, J., dissenting)), and the two recent opinions out of the Fifth District, People v. DuPree, 353 Ill. App. 3d 1037 (2004), and People v. Crutchfield, 353 Ill. App. 3d 1014 (2004), I recognize that this panel needs to make a ruling on the case before us. Sitting here, impaled on the horns of a dilemma, I find the position of Justice Hold-ridge preferable to that of Justice Lytton. I therefore concur.