Larsen v. Nooth

• Decision Date: 20 June 2018
• Docket Number: A162167
• Citation: 425 P.3d 484,292 Or.App. 524
• Parties: John Sorn LARSEN, Petitioner-Appellant, v. Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.
• Court: Oregon Court of Appeals

292 Or.App. 524

425 P.3d 484

John Sorn LARSEN, Petitioner-Appellant,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A162167

Court of Appeals of Oregon.

Submitted March 22, 2018.

June 20, 2018

Jed Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

PER CURIAM

Petitioner, who was required to wear an electronic restraint device at his criminal trial, appeals from a judgment denying post-conviction relief on his claim that his trial counsel was inadequate and ineffective for not objecting to the use of the electronic restraint or requiring that a record be made to justify the use of the restraint. He raises two assignments of error. In the first, he contends that the post-conviction court erred when it concluded that he was not entitled to relief absent a showing of actual prejudice. However, as petitioner recognizes, that contention is foreclosed by Sproule v. Coursey , 276 Or. App. 417, 367 P.3d 946, rev. den. , 359 Or. 777, 381 P.3d 818 (2016). Petitioner contends that Sproule was wrongly decided and should be overruled; we are not persuaded. In the second assignment of error, he asserts that the post-conviction court erred when it admitted the affidavit of Corporal Bruce. Having considered the affidavit and the parties' arguments, we disagree.

Affirmed.

James, J., concurring.

JAMES, J., concurring.

A Lincoln County grand jury charged petitioner with a multitude of serious felonies. For two weeks in January 2011, petitioner was tried before a jury on those charges. Throughout that trial, petitioner was shackled. Not in old fashioned chains or irons, but by wearing under his clothing a "Band-It," an electro-shock restraint device, commonly, though somewhat inaccurately, referred to as a stun belt. The decision to shackle petitioner throughout trial did not come following a hearing, at which the state would have presented evidence of petitioner's particular safety risk, or his history of violence, or his intent to disrupt the court decorum. Rather, the record reveals that petitioner wore the device because, pursuant to a local court order, all incarcerated criminal defendants in Lincoln County wore such a device at trial when appearing in civilian clothing. Petitioner's trial attorney offered no objection.

Petitioner sought post-conviction relief, arguing that his trial attorney was constitutionally inadequate and ineffective in failing to object to his shackling. In support of his claim, petitioner testified that the device affected his thought process throughout trial. Petitioner testified, in part:

"While I was in jail, about a month before trial, I saw one of the guys in jail get tazed. The inmate got stiff, fell to the ground, hit his head, and urinated himself in front of everyone. * * * When they had me sign the notice and wear the shock restraint device, I thought back to that guy in the jail and I was scared. I was afraid that I'd get shocked and pee myself in front of everyone."

The post-conviction court found all of petitioner's statements noncredible, finding:

"The testimony of his attorney and the district attorney as well as the transcript of the trial reflects that Petitioner testified at length and in great detail and that there was no evidence of reluctance or inhibition. * * * Petitioner was also actively engaged in conversation with the deputies and others during breaks. There was no indication that he was nervous, subdued or apprehensive. * * * Petitioner's claim that he was terrified that the device would accidently be activated is likewise not credible. He was advised of what type of actions could result in activation of the device. The switch on the deputy's belt had a safety guard and required insertion of the finger to activate the switch. Had Petitioner actually been fearful about the possibility of accidental activation of the security devise one would expect him to mention it to his attorney at some point during the multi-day trial."

Ultimately, the post-conviction court denied relief, concluding that petitioner's trial counsel's failure to object to the shackling was not constitutionally deficient performance, and that, even if it were, petitioner had not established prejudice as a result of the shackling, because the court found petitioner's testimony not credible on that point. In determining that defense counsel's failure to object was not deficient, the post-conviction court reasoned that "[t]he case of State v. Wall , [252 Or. App. 435, 287 P.3d 1250 (2012), rev. den. , 353 Or. 280, 298 P.3d 30 (2013) ] * * * was not decided until after the Petitioner's trial took place. * * * Petitioner's attorney was not ineffective for not anticipating the Wall decision." As to the issue of prejudice, the post-conviction court reasoned, "Where a non-visible security device is used at trial, prejudice is not presumed."

In this per curiam opinion, we affirm the post-conviction court's denial of relief, relying on our decision in Sproule v. Coursey , 276 Or. App. 417, 367 P.3d 946, rev. den. , 359 Or. 777, 381 P.3d 818 (2016). In Sproule , relying on our decision in Bates , we noted that there were three types of prejudice as a result of shackling: " ‘(1) impingement on the presumption of innocence and the dignity of judicial proceedings; (2) inhibition of the accused's decision whether to take the stand as a witness; and (3) inhibition of the accused's consultation with his or her attorney.’ " 276 Or. App. at 424, 367 P.3d 946 (quoting State v. Bates , 203 Or. App. 245, 251, 125 P.3d 42 (2005), rev. den. , 340 Or. 483, 135 P.3d 318 (2006) ).

Sproule drew a distinction, however, as to when prejudice would be presumed and when prejudice would need to be established by a post-conviction petitioner.

"Thus, where the record shows that a criminal defendant was restrained in a manner that could not be effectively shielded from the jury's view, there is a presumption that the shackles are seen by the jury and prejudice results.

"In contrast, if a defendant is restrained in a manner that is not visible to the jury, prejudice will not be presumed."

Sproule , 276 Or. App. at 424-25, 367 P.3d 946 (internal citations and quotation marks omitted).

Sproule grounded that decision, in part, on State v. Bowen , 340 Or. 487, 135 P.3d 272 (2006). There, the Oregon Supreme Court declined, in the posture of a direct appeal, to review a plain error challenge to the constitutionality of the use of a stun belt, noting:

"There is no evidence in the record that the stun belt that defendant wore at trial was visible to the jury, and, therefore, defendant cannot claim that the jury was biased by its presence. Furthermore, defendant failed to provide evidence or point to anything in the record indicating that the stun belt affected his ability to assist in his defense. Because defendant is unable to satisfy the third element of the plain error criteria, this court will not consider defendant's unpreserved claim of error."

Id. at 496, 135 P.3d 272.

In reaching a distinction between shackling that was visible to a jury versus shackling that was not visible to a jury, Sproule hewed closely to the federal analysis offered a decade earlier in Deck v. Missouri , 544 U.S. 622, 635, 125 S.Ct. 2007, 161 L. Ed. 2d 953 (2005). There, the United States Supreme Court held that "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation." Id. at 635, 125 S.Ct. 2007. In holding that there was no need for an individualized showing of prejudice when shackling is visible to the jury, Deck relied on Holbrook v. Flynn , where the Court declared that some "practices pose such a threat to the ‘fairness of the factfinding process’ that they must be subjected to ‘close judicial scrutiny’ " and were "inherently prejudicial." 475 U.S. 560, 568, 106 S.Ct. 1340, 89 L. Ed. 2d 525 (1986) (quoting Estelle v. Williams , 425 U.S. 501, 503-04, 96 S.Ct. 1691, 48 L. Ed. 2d 126 (1976) ).

In this case, petitioner asks us to disavow Sproule , advancing a very narrow argument, asserting only that it is contradictory to our holdings in Cunningham v. Thompson , 186 Or. App. 221, 62 P.3d 823, adh'd to as modified on recons ., 188 Or. App. 289, 71 P.3d 110 (2003), rev. den. , 337 Or. 327 (2004) and Davis v. Armenakis , 151 Or. App. 66, 948 P.2d 327 (1997), rev. den. , 327 Or. 83, 961 P.2d 217 (1998).¹ I agree that Sproule is controlling and, because I conclude that petitioner's narrow argument challenging Sproule does not suffice to overcome the strong principle of stare decisis , I join in the majority per curiam opinion.

However, I write separately for two reasons. First, I believe it is important to make clear which aspects of the post-conviction court's ruling the majority opinion does, and does not, affirm. The majority does not rely on Wall to affirm the post-conviction court as to performance of trial counsel and, if it did so, I would dissent. The post-conviction court's conclusion that constitutionally adequate counsel could not reasonably be expected to object, prior to Wall , to a non-visible restraint of their client, without any individualized factual basis for such a restraint, is incorrect. Wall itself noted the long history of the principle that the accused has the right "to be free from physical restraint during a criminal trial." 252 Or. App. at 437, 287 P.3d 1250. In addition, as Wall noted, we have long held that "physically restraining a defendant implicates Article I, section 11, of the Oregon Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution." Id . (relying on State v. Merrell , 170 Or. App. 400,...