(concurring in part, dissenting in part) — The majority correctly remands Cecil Emile Davis’s case for a new penalty trial because the trial court unconstitutionally ordered him to appear before the jury in leg restraints (i.e., shackles) during sentencing. However, the majority stops short. Davis’s conviction must be reversed because he was also unconstitutionally shackled during the guilt phase of his trial.359 While recognizing the clear constitutional error of the shackling, the majority fails to apply the correct standard to determine the prejudicial effect of that error.
The majority acknowledges, as it must, there was no justification for the trial court’s order requiring Davis to be shackled during the guilt and penalty phases of his trial. See majority at 676-77, 694-95, 699 n.135. This is so because, although the majority relegates this essential point to a one sentence statement in a footnote, see id. at 699 n.135, the trial court failed to conduct an individualized *765assessment of the need for shackling, a constitutional requirement recognized by this court to shackle a defendant during trial, see State v. Finch, 137 Wn.2d 792, 846-54, 975 P.2d 967 (1999); State v. Hartzog, 96 Wn.2d 383, 400, 635 P.2d 694 (1981). The majority claims, however, the unconstitutional shackling of Davis did not prejudice him as to the jury’s finding of guilt because the record reveals “overwhelming evidence” of his guilt. Majority at 700. Bewilderingly, the majority also asserts the impermissible shackling does not warrant reversal of Davis’s conviction because only one juror saw him wearing shackles in the courtroom during the guilt phase of the trial. Id. at 704-05.360
The majority misses the mark. The final measure of error in a criminal trial is whether the defendant was afforded a fair trial, not whether the appellate court agrees with the *766jury’s verdict. State v. Green, 71 Wn.2d 372, 373, 428 P.2d 540 (1967). This court has long recognized:
[I]t is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors. The state attempts to safeguard the life and liberty of its citizens by securing to them certain legal rights. These rights should be impartially preserved. They cannot be impartially preserved if the appellate courts make of themselves a second jury and then pass upon the facts.
State v. Robinson, 24 Wn.2d 909, 917, 167 P.2d 986 (1946).
A criminal defendant has the constitutional right to appear at trial free from shackles or other physical restraints, except in extraordinary circumstances. Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999); Finch, 137 Wn.2d at 842. This right is an essential component of a fair and impartial criminal trial, guaranteed by the sixth and fourteenth amendments to the United States Constitution and article I, section 3, and article I, section 22 of the Washington State Constitution. Finch, 137 Wn.2d at 843. The Supreme Court has clearly stated “one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” Taylor v. Kentucky, 436 U.S. 478, 485, 98 S. Ct. 1930, 56 L. Ed. 2d 468 (1978).
Requiring a defendant to appear at trial in physical restraints poses a substantial risk of destroying the defendant’s presumption of innocence, “ ‘a basic component of a fair trial under our system of criminal justice.’ ” Finch, 137 Wn.2d at 844 (quoting Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976)). Shackles unmistakably indicate the court believes there is a “need to separate a defendant from the community at large, creating an inherent danger that the jury may form the impression that the defendant is dangerous or untrustworthy.” Rhoden, 172 F.3d at 636 (citing Holbrook v. Flynn, 475 U.S. 560, *767568-69, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)). This is particularly true where the defendant is accused of a violent crime because the sight of the defendant in shackles is likely to not only lead jurors to believe the defendant is a violent person but also that he or she is disposed to commit the type of acts alleged. Finch, 137 Wn.2d at 845 (citing People v. Duran, 16 Cal. 3d 282, 290, 545 P.2d 1322, 127 Cal. Rptr. 618 (1976)). Furthermore, shackling hinders a defendant’s ability to assist in his or her defense and is offensive to the dignity of the judicial process. Id. at 846.
It is indeed true, as the majority points out, this court has held unjustified shackling harmless under certain circumstances. Majority at 695-97 (citing State v. Clark, 143 Wn.2d 731, 775-76, 24 P.3d 1006 (2001); Finch, 137 Wn.2d at 862). But contrary to the majority’s assertion, the prejudicial effect of shackles cannot be determined by evaluating the evidence presented to the jury. This is because the presence of shackles has a subliminal effect and “jurors will not necessarily be fully conscious of the effect it will have on their attitude toward the accused.” Holbrook, 475 U.S. at 570.
When determining the effect of impermissible shackling on a jury’s verdict, our overarching concern is its impact “on the presumption of innocence.” Clark, 143 Wn.2d at 776. To that extent, the prejudice that may result from requiring a defendant to wear shackles during trial turns on the degree to which the jury could detect the defendant was in shackles during trial proceedings. See, e.g., Rhoden, 172 F.3d at 636-37 (holding erroneous shackling not harmless where five jurors saw defendant in shackles during proceedings and two jurors remembered other jurors making comments to them about the shackles); Spain v. Rushen, 883 F.2d 712, 722 (9th Cir. 1989) (holding erroneous shackling not harmless where shackles were conspicuous); see also Duckett v. Godinez, 109 F.3d 533, 535 (9th Cir. 1997) (holding erroneous shackling harmless where shackles not visible to jury); United States v. Olano, 62 F.3d 1180, 1190 (9th Cir. 1995) (holding erroneous shackling harmless where only a possi*768bility some jurors saw defendant in shackles outside courtroom); State v. Damon, 144 Wn.2d 686, 693, 25 P.3d 418 (2001) (holding erroneous use of restraint chair during trial was not harmless where jury “must have observed” defendant in chair); Clark, 143 Wn.2d at 776 (discussed infra); State v. Elmore, 139 Wn.2d 250, 274-75, 985 P.2d 289 (1999) (holding erroneous shackling on first day of voir dire harmless where defendant was not shackled during trial).
In Clark we held there was no actual prejudice requiring reversal of the defendant’s conviction where he appeared unrestrained throughout the trial but was restrained on the first day of voir dire and the day the verdict was read. Clark, 143 Wn.2d at 776. We reasoned the defendant’s “shackling on the first day of voir dire was more than logically offset by over two weeks of observing [him] in the courtroom without shackles” and “the presumption of innocence was [no longer] at stake on the day the verdict was read.” Id. In Clark we did not attempt to second-guess the jury by independently weighing the evidence pertaining to the guilt or penalty phases.
In Dyas v. Poole, 317 F.3d 934, 938 (9th Cir. 2002), the Ninth Circuit affirmed a district court order conditionally granting a writ of habeas corpus to a defendant who had been unconstitutionally shackled during her trial. The California Court of Appeal previously held the shackling violated the defendant’s right to a fair trial but held the error harmless because the trial court determined none of the jurors could see the shackles from the jury box. Id. at 936. The defendant subsequently filed a petition for habeas corpus in federal district court, prompting the magistrate judge to conduct an evidentiary hearing to determine whether any juror actually saw the defendant in shackles. Id. One of the jurors and a prospective juror testified at the evidentiary hearing that they had seen the defendant in shackles from the jury box. Id. On the magistrate judge’s recommendation, the district court granted the defendant’s writ. Id.
*769The Ninth Circuit affirmed, holding “[prejudice is particularly likely here because at least one juror saw Dyas’s shackles during the trial from the jury box. It is likely that other jurors saw the shackles, but if even one juror is biased by the sight of the shackles, prejudice can result.” Id. at 937 (citation omitted) (citing Parker v. Gladden, 385 U.S. 363, 366, 87 S. Ct. 468, 17 L. Ed. 2d 420 (1966) (noting “a defendant is ‘entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors’ ”)). Furthermore, the court reasoned the defendant was charged with a violent crime, “increasing the risk that ‘the shackles essentially branded [her] as having a violent nature.’ ” Id. (alteration in original) (quoting Rhoden, 172 F.3d at 637).
Here Davis was unconstitutionally shackled throughout both the guilt and penalty phases of his trial. He was also charged with a violent crime, aggravated first degree murder. Evidence presented at the reference hearing demonstrates that at least one juror (Michael Buchanan) actually saw Davis in shackles on two occasions during the guilt phase of the trial. Verbatim Report of Proceedings (VRP) at 154-55, 173. This juror remembered seeing the shackles even though the reference hearing was nearly five and a half years after the trial. See Rhoden, 172 F.3d at 637 (finding significant that jurors at evidentiary hearing six years after trial remembered seeing defendant in shackles). There is a very strong likelihood at least two other jurors (Karen Dasher and the unnamed juror who made a comment to Dasher in the jury room about shackles) were also aware Davis was in shackles. See VRP at 359, 379. To make matters worse they had a conversation about shackles in the jury room with other jurors around. VRP at 379. Under these facts it cannot be doubted that the impermissible shackling of Davis “ ‘had substantial and injurious effect or influence in determining the jury’s verdict’ ” and consequently was not harmless. Rhoden, 172 F.3d at 637 (quoting *770Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993)).361
The majority does not rely upon the testimony of jurors Buchanan, Dasher, and Ed Nelson, each of whom stated that his or her knowledge of the shackles did not affect his *771or her decision. However, the majority suggests that such testimony could be probative if it were not so remote. Majority at 689. The jurors’ subjective beliefs are irrelevant to this court’s ultimate determination of prejudice. See Dyas, 317 F.3d at 937. In Dyas the state of California responded to Dyas’s claim of unconstitutional shackling by arguing any possible prejudice arising from seeing her in shackles was eliminated because the jurors stated during voir dire that seeing her in shackles on her way to and from the courtroom would not have any effect on them. Id. The Ninth Circuit rejected the State’s argument noting the Supreme Court has recognized “ little stock need be placed in jurors’ claims’ that they will not be prejudiced.” Id. (quoting Holbrook, 475 U.S. at 570). The court further noted where visible shackling is at issue “ ‘the question must be not whether jurors actually articulated a consciousness of some prejudicial effect, but rather whether an unacceptable risk is presented of impermissible factors coming into play.’ ” Id. at 937-38 (quoting Holbrook, 475 U.S. at 570). The court granted Dyas relief reasoning that “[t]he analysis . . . must focus on whether the risk was there, not whether the jurors could recognize the risk.” Id. at 938. The majority’s suggestion the subjective beliefs of jurors could be probative is misguided, and could lead to devastating results.
The majority’s conclusion that Davis’s shackling had no effect on the jury’s guilty verdict is contrary to state and federal law. Davis’s visible and unjustified shackling destroyed his presumption of innocence and right to a fair trial. A prejudicial constitutional error such as this cannot be tolerated.
The majority correctly reverses Davis’s sentence but fails to take the next logical step. Davis’s personal restraint petition should be granted in full, his conviction and death sentence reversed, and the case remanded for a new trial.
The majority disagrees that the trial court ordered Davis to be shackled because Judge Fleming never ordered it when the case was reassigned to him following the mistrial. Majority at 700 n.138. However, after Judge Hayes declared the mistrial (Nov. 13, 1997), Judge Sebring decided to transfer the case back to the court for reassignment (Nov. 24,1997). Clerk’s Papers (CP) at 512, 520. He considered the transfer to have the same legal effect as a recusal. Id. at 520. Judge Sebring specifically said, “The prior orders and rulings I have made all remain in effect, unless or until modified by the new trial judge.” Id. Judge Fleming never modified the shackling order. The majority’s claim the trial court did not order Davis to be shackled is simply wrong.
1 also note the majority’s discussion of Davis’s shackling claim is needlessly confusing. A careful review of the briefs demonstrates his claim is far more straightforward than the majority makes it.
In his amended personal restraint petition, Davis asserts he was deprived of his right to due process and a fair trial by forcibly being shackled throughout trial and posttrial proceedings. Am. Pers. Restraint Pet. at 26-31. The State responded by arguing, among other things, that Davis waived his shackling claim by failing to raise a proper objection with the trial court. State’s Resp. to Pers. Restraint Pet. at 77-81. Davis countered that he did properly object to his being shackled but he argued in the alternative that a failure to properly object would nonetheless constitute ineffective assistance of counsel. Pet’r’s Reply Br. at 9-11.
The threshold issue then is whether Davis waived his shackling claim by failing to properly object to the trial court’s order that he be shackled. If he did not waive the claim, this court must reach the merits of his claim as presented in his amended personal restraint petition. If he did waive the claim, this court must resolve the shackling issue in the context of Davis’s claim of ineffective assistance of counsel. The majority ostensibly does both, although it specifically does not decide whether Davis waived his shackling claim. See majority at 700.
The majority acknowledges Davis properly objected to Judge Sebring’s order requiring him to wear shackles during trial proceedings. See id. at 676, 699. The majority also concedes Judge Sebring explicitly advised counsel his orders and rulings would all “ ‘remain in effect, unless or until modified by the new trial judge.’ ” Majority at 700 (quoting CP at 520). There is nothing in the record or elsewhere indicating Davis was somehow required to object again to the same order when the case was transferred to Judge Fleming. As such, Davis did not waive his shackling claim and any discussion regarding ineffective assistance of counsel in this context is inappropriate.
The majority mistakenly claims the dissent asserts a per se rule for ineffective assistance of counsel on the issue of shackling. Majority at 674 n.34. The dissent does not address the ineffective assistance of counsel claim because Davis did not waive the shackling claim. Ineffective assistance of counsel is not an issue.
Although perhaps not dispositive, the majority opinion contains a glaring inaccuracy that must be corrected for the record. The majority asserts “the trial court’s finding that Juror Nelson did not see Davis in leg restraints is supported by substantial evidence.” Majority at 685. According to the majority, the supposed substantial evidence is derived from the fact that Nelson allegedly testified “the only time” he saw Davis wearing shackles was in a hallway “during a transfer from ‘an elevator through a hallway into a larger courtroom.’ ” Id. at 684 (quoting VRP at 604). The majority then claims Davis “concedes that the trial court’s finding that no juror saw Davis being transported from the freight elevator was accurate.” Id. at 685. That concession, coupled with a befuddling discussion of whether Nelson did or did not see “someone” in “handcuffs,” according to the majority, leads to the conclusion that the trial court correctly found juror Nelson did not see Davis in leg restraints. Id. at 685. This is incorrect. It is also inconsistent with the majority’s own footnote 76, upon which I will try to shed some light.
The trial court’s finding Davis challenges here is the finding that “|j]uror Ed Nelson did not see [Davis] in leg restraints,” CP at 256. Pet’r’s Am. Suppl. Br. Regarding Shackling at 66. Nelson testified that while he and other potential jurors were waiting in a courthouse hallway prior to voir dire, he saw both Davis and his codefendant, George Anthony Wilson, being escorted into the courtroom in “standard restraints” around their “wrists and ankles.” VRP at 597-98. He then testified about a prior written declaration he provided the State’s investigator, Kenneth Swanson. VRP at 602-04. Nelson testified “[t]he only time I remember seeing them in shackles was during the transfer from what must have been an elevator through a hallway into a larger courtroom, and that’s what is in the declaration.” VRP at 603-04 (emphasis added). The majority seizes on Nelson’s speculative statement about the possibility Davis had been brought from “an elevator” when Nelson saw him and Davis’s concession that no juror saw him being transported from the freight elevator to conclude “the trial court’s finding that juror Nelson did not see Davis in leg restraints is supported by substantial evidence.” Majority at 685.
Whether Davis was being brought from the freight elevator or elsewhere is beside the point. Nelson testified repeatedly and unequivocally that he saw Davis in wrist and ankle restraints while Davis was being escorted into the courtroom prior to voir dire. VRP at 597-98, 603-04, 612. In response to a question by the State during cross-examination, Nelson declared:
A: You know, I have been asked these questions about nine different ways, and if you want me to remember exactly what one person asked me at one time, it’s going to be a little difficult.
I have been asked several times whether I remember seeing them shackled in the courtroom. I said no. The only time I remember handcuffs or shackles is in the hallway downstairs on the main floor for a brief period of time.
VRP at 612. As such, the trial court’s finding that Nelson did not see Davis in leg restraints is erroneous.