Filed
Washington State
Court of Appeals
Division Two
November 7, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 49777-8-II
Respondent,
v. UNPUBLISHED OPINION
XAVIER JOAQUIN FLORES,
Appellant.
MAXA, A.C.J. – Xavier Flores appeals his third degree assault conviction, challenging the
trial court’s decision to allow him to be placed in a leg restraint during his jury trial. He alleges
that Thurston County routinely places physical restraints on defendants without finding
extraordinary circumstances.
We hold that even if the trial court did err in allowing a leg restraint without a finding of
extraordinary circumstances, any error was harmless because there is no indication that the jury
was aware of the restraint. We also reject Flores’s additional claims asserted in a statement of
additional grounds (SAG). Therefore, we affirm Flores’s conviction.
FACTS
At 2:30 AM, on July 7, 2016, staff and guests at a hotel in Tumwater reported that
someone outside was yelling and screaming. Officer Kelly Clark was the first to respond. As he
was driving through the hotel’s parking lot, he noticed a man come out of the bushes and run
No. 49777-8-II
toward his vehicle. Clark stopped his vehicle, stepped out, and escorted Flores away from the
vehicle.
According to Clark, Flores lunged at him, put his arms around his neck, and squeezed his
neck. Flores tried to bite him. Clark brought Flores to the ground, but Flores did not loosen his
grip on Clark’s neck. So Clark fired his taser into Flores’s abdomen. This still did not stop
Flores, who then tried to take Clark’s taser and handgun. Officer Jason Raphael arrived, and he
had to punch Flores in the face in order to pull Flores’s arms away. The two officers then were
able to handcuff him. It took additional officers to subdue and arrest Flores.
The State charged Flores with second degree assault by means of strangulation with an
aggravating circumstance that Flores assaulted a police officer performing his duties.
Alternatively, the State charged Flores with a lesser included offense of third degree assault.
Before trial, the State requested that Flores wear a leg restraint. Defense counsel objected
but also stated that in his extensive experience with leg restraints placed on defendants, jurors
had never seen nor commented on them. Therefore, he noted that he could not show that the
restraint would cause any particular prejudice to Flores.
The trial court ruled that a leg restraint was appropriate, stating:
I am going to require the use of the leg brace restraint at trial. I believe the
factors that support it in this specific case are the seriousness of the charge, in
particular Assault 2, the nature of the allegations that are set forth in the Affidavit
of Probable Cause, including the conduct at the time interacting with law
enforcement officers; and also, the criminal history that is not objected to that does
include obstructing and attempting to elude a police vehicle and Assault 4.
I also want to note the nature of the courtroom. This isn’t a large courtroom by
any means. And given the location of the jury when the jury is seated and the
proximity to the Defendant, all of those are factors, in my mind, that determine and
support the conclusion that the court will require the use of restraints in this case.
1 Report of Proceedings (RP) at 17-18.
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The trial court also noted that steps usually were taken to prevent the jury from seeing the
defendant move around to eliminate the chance that they would notice the leg restraint. As a
result, during trial Flores was seated in the witness stand before the jury entered the courtroom
and he remained seated after his testimony until the jury left.
The jury found Flores guilty only of the lesser-included offense, third degree assault.
Flores appeals his conviction.
ANALYSIS
A. PLACING PHYSICAL RESTRAINTS ON DEFENDANT
Flores argues that the trial court violated his constitutional right to a fair trial by allowing
the Thurston County sheriff’s office to place him in a leg restraint. We hold that any error in
allowing the restraint was harmless.
1. Legal Principles
“It is well settled that a defendant in a criminal case is entitled to appear at trial free from
all bonds or shackles, except in extraordinary circumstances.” State v. Finch, 137 Wn.2d 792,
842, 975 P.2d 967 (1999) (emphasis added). This right to appear without restraints is designed
to preserve a defendant’s right to a fair trial under the Sixth and Fourteenth Amendments to the
United States Constitution and article I, section 22 of the Washington Constitution. Id. at 843.
Washington courts have “universally held that restraints should ‘be used only when
necessary to prevent injury to those in the courtroom, to prevent disorderly conduct at trial, or to
prevent an escape.’ ” Id. at 846 (quoting State v. Hartzog, 96 Wn.2d 383, 398, 635 P.2d 694
(1981). And the use of physical restraints should be used only as a last resort. Finch, 137 Wn.2d
at 850.
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The Supreme Court has identified several factors that the trial court should consider when
deciding whether a defendant should be restrained during trial:
“[T]he seriousness of the present charge against the defendant; defendant's
temperament and character; his age and physical attributes; his past record; past
escapes or attempted escapes, and evidence of a present plan to escape; threats to
harm others or cause a disturbance; self-destructive tendencies; the risk of mob
violence or of attempted revenge by others; the possibility of rescue by other
offenders still at large; the size and mood of the audience; the nature and physical
security of the courtroom; and the adequacy and availability of alternative
remedies.”
State v. Hutchinson, 135 Wn.2d 863, 887-88, 959 P.2d 1061 (1998) (quoting Hartzog, 96 Wn.2d
at 400).
However, in Finch the court emphasized that the existence of one of more of these factors
does not necessarily mean that the defendant should be restrained absent compelling
circumstances that require restraints for courtroom security. 137 Wn.2d at 850. “The trial court
must base its decision to physically restrain a defendant on evidence which indicates that the
defendant poses an imminent risk of escape, that the defendant intends to injure someone in the
courtroom, or that the defendant cannot behave in an orderly manner while in the courtroom.”
Id.
The trial court has discretion in determining whether a defendant should be restrained.
Hutchinson, 135 Wn.2d at 887. But this discretion has limitations.
A trial judge must exercise discretion in determining the extent to which courtroom
security measures are necessary to maintain order and prevent injury. That
discretion must be founded upon a factual basis set forth in the record. A broad
general policy of imposing physical restraints upon prison inmates charged with
new offenses because they may be ‘potentially dangerous’ is a failure to exercise
discretion.
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Finch, 137 Wn.2d at 846 (quoting Hartzog, 96 Wn.2d at 400). The trial court commits
constitutional error if it orders the defendant restrained without balancing or analyzing the need
for restraints. State v. Clark, 143 Wn.2d 731, 775, 24 P.3d 1006 (2001).
A claim of unconstitutional physical restraints is subject to a harmless error analysis. Id.
Improperly restraining a defendant is harmless error if the jury does not see the defendant in
restraints. Id. at 777; Hutchinson, 135 Wn.2d at 888.
2. Analysis
Here, the trial court did analyze several relevant factors in determining that placing Flores
in a leg restraint was appropriate. However, it does not appear that the trial court recognized that
physical restraints should be used only in extraordinary circumstances and as a last resort.
Further, we acknowledge that Flores alleges that there is a routine practice of imposing
physical restraints on defendants in Thurston County. The Supreme Court in Finch disapproved
of broad, general policies calling for placement of restraints on defendants. 137 Wn.2d at 846.
Yet defense counsel in this case stated that he had been through “50 or more trial days with
various individuals in this court that have had the leg restraint.” 1 RP at 10.
Here, the prosecutor stated that the leg restraint was needed because otherwise two
security officers would be needed in the courtroom rather than one. Although this factor may be
relevant in extraordinary cases where physical restraints are warranted, it cannot be used to
justify the routine imposition of restraints on criminal defendants.
We do not need to determine whether the trial court abused its discretion in this case
because any error was harmless. There is no evidence in the record that the jury saw or was
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aware of the leg restraint placed on Flores. Therefore, on this record, placement of the leg
restraint could not have prejudiced Flores.
We reject Flores’s argument that his conviction must be reversed because he was placed
in a leg restraint during trial.
B. SAG CLAIMS
In his SAG, Flores presents two additional grounds for review. First, he asserts that the
State withheld evidence that Officer Clark lied in a 2009 case. But the record does not contain
any such evidence. We cannot consider matters outside the trial record when a claim is brought
on direct review. State v. Grier, 171 Wn.2d 17, 29, 246 P.3d 1260 (2011). Therefore, we cannot
review this claim. If Flores wishes to raise issues that require evidence of facts not in the record,
he must file a personal restraint petition. Id.
Second, Flores asserts that the prosecutor failed to allow the court and jury “to receive
and view all of the evidence in its entirety and/or original format.” SAG at 2. But he fails to
identify this evidence, why it was error to exclude it, or explain how it prejudiced his trial. As
such, we cannot review this claim. RAP 10.10(c).
C. APPELLATE COSTS
Flores asks that we refrain from awarding appellate costs if the State seeks them. The
State does not contest this request. Therefore, we decline to impose appellate costs.
CONCLUSION
We affirm Flores’s conviction.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
JOHANSON, J.
MELNICK, J.
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