People v. Barney

• Decision Date: 10 February 2006
• Docket Number: No. 4-04-0217.,4-04-0217.
• Citation: 844 N.E.2d 80
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig BARNEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

844 N.E.2d 80

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Craig BARNEY, Defendant-Appellant.

No. 4-04-0217.

Appellate Court of Illinois, Fourth District.

February 10, 2006.

Daniel M. Kirwan, Deputy Defender (court appointed), John H. Gleason, Assistant Defender, Office of the State Appellant Defender, Mt. Vernon, for Craig Barney.

Julia Rietz, State's Attorney, Urbana, Norbert J. Goetten, Director, Robert J. Biderman, Deputy Director, Denise M. Ambrose, Staff Atty., State's Attorneys Appellant Prosecutor, Springfield, for People.

Justice KNECHT delivered the opinion of the court:

In January 2004, a jury convicted defendant, Craig Barney, of obstructing justice (720 ILCS 5/31-4(a) (West 2002)). In February 2004, the trial court sentenced defendant to a three-year prison term. During his trial, defendant was restrained by leg irons. Defendant did not object to the shackling. Despite his lack of objection defendant argues on appeal his shackling was plain error. We disagree and affirm.

I. BACKGROUND

At trial, the State presented the testimony of two Urbana police officers, Matthew Quinley and David Smysor. Quinley testified he was dispatched to the residence of Charisma Johnson to arrest defendant on an outstanding warrant. Smysor was similarly dispatched. After they arrived at Johnson's residence, Smysor spoke with Johnson while Quinley went upstairs to find defendant. Quinley found defendant, who was packing to leave, in an upstairs bedroom.

Quinley informed defendant he was under arrest on the outstanding warrant and took defendant into custody. As part of the arrest process, Quinley conducted a routine search. Smysor was on defendant's left side, while Quinley was on his right side. Quinley searched the right side of defendant. In the watch pocket of defendant's pants, Quinley found two small, clear, tied plastic bags. Inside each bag was "a white chunky substance." Quinley believed the product was crack cocaine because it resembled crack cocaine both in substance and in its packaging. Quinley laid the plastic bags on the bed, along with two sets of keys and two lighters he found on defendant's person.

Quinley testified Smysor next searched defendant's left side. When Smysor completed his search, defendant buckled his knees and fell forward onto the top of the bed. Defendant then inhaled the two bags. Quinley tried to open his mouth, while Smysor "applied a pressure point to him." Quinley and Smysor yelled at defendant to spit out the bags. Defendant did not comply. When defendant did open his mouth, Quinley found nothing. Defendant said, "It is gone." Defendant later told Quinley the substance was soap and his attorney would have the charges dropped by the next morning. The officers searched the room and did not find the Baggies.

On cross-examination, Quinley testified he believed Johnson was downstairs when the arrest and search occurred. The officers did not take defendant to a hospital or make any efforts to pump his stomach or vomit.

Smysor's testimony corroborated Quinley's regarding the search and defendant's ingestion of the Baggies. Smysor testified, however, Johnson was in the hallway outside the bedroom door during the arrest. Johnson was not close to defendant or the officers.

At the close of the State's evidence, and after a lunch recess, the trial court admonished defendant regarding his right to decide whether to testify. Then the following colloquy occurred regarding the leg irons:

"THE COURT: Okay. I think because of the unique situation with the leg irons, we need to determine whether or not he wishes to testify. [Defense counsel], is this a decision that you and your client still aren't in a position to make until you evaluate the testimony of the other witness, or is it one you're in a position to make now?

[DEFENSE COUNSEL]: I believe we can make it now, if I may have just a moment. Judge, we are in a position to decide, and he does not intend to testify at this time.

THE COURT: Okay. That is a decision that you have made and it is your choice; is that correct, Mr. Barney?

DEFENDANT: That is correct.

THE COURT: Very good, sir. Now counsel, is there any reason then that we can't go ahead right now. It is not visible, is it, to the jurors, his leg irons there?

[PROSECUTOR]: It is visible to me.

OFFICER: It is tucked in his shoe and his pant leg is over it.

THE COURT: I'm going to get off the bench for a second. [Defense counsel], to satisfy yourself, come on over here but I can't see it.

[DEFENSE COUNSEL]: I suppose I really should. Thank you. I really can't see anything obvious.

THE COURT: Okay. Looks to me then there is no prejudice to the defendant if we just proceed with the trial at this time. So is there anything else either of you wish to place on the record?

[DEFENSE COUNSEL]: No."

Defendant presented the testimony of one witness, Charisma Johnson. Johnson testified defendant was her boyfriend until the day of his arrest. From the doorway, Johnson observed part of the search of defendant. During the search of defendant's left side, one of the officers was attempting to keep her out of the room. Johnson could see the bed clearly from where she stood. On the bed were some objects, including money, a lighter, cigarettes, and candy wrappers, taken from defendant's pockets. None of the objects were bags of crack cocaine. Johnson did not see defendant fall on the bed. She also did not see the officers search the room.

On cross-examination, Johnson admitted the bedding had wrinkles because the bed had not been made. She did not see two sets of keys or two lighters on the bed. Johnson testified all she saw the police remove from defendant was money. The officer said, "This must be drug money." Johnson responded the money was hers. Johnson did not see an officer search defendant's right side.

The jury found defendant guilty of obstructing justice. The trial court later sentenced defendant as stated.

This appeal followed.

II. ANALYSIS

The shackling of defendants during trial should be avoided. See People v. Boose, 66 Ill.2d 261, 5 Ill.Dec. 832, 362 N.E.2d 303 (1977). Restraining a defendant by shackling tends to prejudice the jury, limits a defendant's ability to aid counsel in his defense, and "offends the dignity of the judicial process." Boose, 66 Ill.2d at 265, 5 Ill.Dec. 832, 362 N.E.2d at 305.

Though disfavored, shackling is permissible in certain circumstances. A court may order a defendant shackled when it has reason to believe (1) the defendant may attempt to escape, (2) the defendant may pose a danger to individuals in the courtroom, or (3) shackling is necessary to maintain order. Boose, 66 Ill.2d at 266, 5 Ill.Dec. 832, 362 N.E.2d at 305. Before such an order may be entered, the court must hold a hearing on this issue outside the presence of the jury. During this hearing, the court shall give defense counsel the opportunity to argue why defendant should not be shackled; and the court shall state, for the record, the reasons for the shackling. Boose, 66 Ill.2d at 266, 5 Ill.Dec. 832, 362 N.E.2d at 305. In this case, no Boose hearing was held and no reasons for the shackling were set forth in the record.

Defendant, however, did not object to the leg shackling at trial or in a posttrial motion. Because he did not object, he has forfeited our review of the error. See People v. Beard, 356 Ill.App.3d 236, 241, 292 Ill.Dec. 97, 825 N.E.2d 353, 359 (2005); see also People v. Strickland, ___ Ill App.3d ___, ___, 300 Ill.Dec. 897, 843 N.E.2d 897 (2006).

Defendant urges this court to consider his argument under the plain-error doctrine. Defendant argues his shackling without a Boose hearing constitutes plain error. Defendant relies on the Third District decision, People v. Allen, 354 Ill. App.3d 442, 443, 446, 290 Ill.Dec. 284 821 N.E.2d 335, 337, 339 (2004), appeal allowed, 214 Ill.2d 537, 294 Ill.Dec. 4, 830 N.E.2d 4 (2005) (No. 99977), which held the use of an electronic security belt as a restraining device without a Boose hearing was plain error.

The State disagrees and contends defendant has not shown plain error. In support, the State relies on a Fifth District decision, People v. Crutchfield, 353 Ill. App.3d 1014, 1021-22, 289 Ill.Dec. 731, 820 N.E.2d 507, 514-15 (2004), in which the court found no plain error in the use of a stun belt during trial because the defendant could not show he was prejudiced.

Under the plain-error doctrine, a court of review may consider issues that were otherwise forfeited due to the failure to object at trial or in a posttrial motion. Before this court may invoke the doctrine and find plain error, we must find the evidence at trial closely balanced or the error was of such magnitude that the defendant was denied a substantial right and a fair trial. See People v. Armstrong, 183 Ill.2d 130, 151, 233 Ill.Dec. 252, 700 N.E.2d 960, 969 (1998).

We have not yet considered the issue of whether shackling, absent a Boose hearing, constitutes plain error. We have considered, in People v. Love, 327 Ill.App.3d 313, 317-18, 261 Ill.Dec. 580, 763 N.E.2d 829, 833 (2002), whether the use of a mask during trial amounted to plain error. However, we did not reach the question of whether the error was of sufficient magnitude to constitute plain error because we found no error in the court's order to mask the accused. See Love, 327 Ill.App.3d at 318-19, 261 Ill.Dec. 580, 763 N.E.2d at 833-34.

The Third and Fifth District Appellate Courts have considered the issue and reached opposite conclusions. The Third District's finding that shackling absent a Boose hearing always equals plain error finds its roots in People v. Doss, 347 Ill. App.3d 418, 283 Ill.Dec. 92, 807 N.E.2d 697 (2004). In Doss, as here, the defendant was required to wear leg shackles during his trial, he did not object to such shackling, and the court did not believe the jury could see the shackles. See Doss, 347 Ill.App.3d at 427-28, 283 Ill.Dec. 92, ...