State v. Aguero, s. 20090241, 20090254.

• Decision Date: 21 December 2010
• Docket Number: Nos. 20090241, 20090254.,s. 20090241, 20090254.
• Citation: 2010 ND 210,791 N.W.2d 1
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Billy Joe Valdez AGUERO, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Joseph Daniel Moncada, Defendant and Appellant.
• Court: North Dakota Supreme Court

791 N.W.2d 1 2010 ND 210 STATE of North Dakota, Plaintiff and Appellee v. Billy Joe Valdez AGUERO, Defendant and Appellant. State of North Dakota, Plaintiff and Appellee v. Joseph Daniel Moncada, Defendant and Appellant. Nos. 20090241, 20090254. Supreme Court of North Dakota. Nov. 9, 2010. Rehearing Denied Dec. 21, 2010.

Mark Jason McCarthy, Assistant State's Attorney, Grand Forks, N.D., for plaintiff and appellee.

Benjamin C. Pulkrabek, Mandan, N.D., for defendant and appellant Billy Joe Aguero.

Robert Wade Martin, North Dakota Public Defenders' Office, Minot, N.D., for defendant and appellant Joseph Daniel Moncada.

SANDSTROM, Justice.

[¶ 1] Billy Joe Valdez Aguero and Joseph Daniel Moncada appeal from criminal judgments entered after a jury found they were each guilty of two counts of murder and two counts of conspiracy to commit murder. We affirm the judgments.

I

[¶ 2] At approximately 11:45 p.m. on September 7, 2001, the bodies of Robert Belgarde and his son, Damien Belgarde, were found in a rural area near Grand Forks. Robert and Damien Belgarde each had several gunshot wounds, and Robert Belgarde suffered from a blunt force injury to his head. Law enforcement recovered a broken beer bottle, a partially smoked cigarette, unspent 9 mm cartridges, bullet casings, and fired bullets from the crime scene.

[¶ 3] In August 2008, Aguero and Moncada were each charged with two counts of murder in violation ofN.D.C.C. § 12.1-16-01, a class AA felony, and two counts of conspiracy to commit murder in violation of N.D.C.C. § 12.1-06-04, a class AA felony, for the deaths of Robert and Damien Belgarde. The State alleged the Belgardes contacted Moncada to purchase drugs, Aguero and Moncada met the Belgardes at a grocery store, and Aguero and Moncada took the Belgardes to a rural area near Grand Forks where they hit Robert Belgarde on the head with a beer bottle and shot the Belgardes multiple times.

[¶ 4] The cases were joined for trial. Moncada was in prison in Minnesota at the time he was charged with the murders and he filed a request for final disposition under the Agreement on Detainers, requesting speedy disposition of the detainer under N.D.C.C. § 29-34-01. On January 30, 2009, the State moved to extend the time for the detainer, and Moncada objected. The court granted the State's motion. Before trial, Moncada's attorney requested the defendants wear non-visible restraints, and the court granted the request. A jury trial was held June 15-25, 2009. Moncada and Aguero wore leg restraints during the trial. The jury found Aguero and Moncada were both guilty as charged.

[¶ 5] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(b). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. § 29-28-06.

[¶ 6] After the appeal was filed, the defendant moved to remand the case to the district court to correct the record to reflect that restraints were visible to the jury. This Court remanded to the district court to hear the motion. After an evidentiary hearing, the district court denied the motion to amend the record.

II

[¶ 7] Aguero and Moncada argue they were denied the right to a fair trial because they were required to wear leg restraints during the trial. They claim the leg restraints were visible and the court did not make any findings that the restraints were necessary for courtroom security.

[¶ 8] We review a district court's decision whether to use physical restraints during court proceedings for an abuse of discretion. State v. Kunze, 2007 ND 143, ¶ 14, 738 N.W.2d 472. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, or when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id.

[¶ 9] In Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the defendant was shackled with leg irons, handcuffs, and a belly chain that were visible to the jury, and the United States Supreme Court held that the Constitution forbids the routine use of visible shackles during the guilt phase of a criminal trial, unless the use is justified by an essential state interest:

[T]he Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial. Such a determination may of course take into account the factors that courts have traditionally relied on in gauging potential security problems and the risk of escape at trial.

[¶ 10] State interests justifying the use of visible restraints include physical security, escape prevention, and courtroom decorum.Deck, 544 U.S. at 628, 125 S.Ct. 2007. In deciding whether restraints should be used, a trial court should consider various factors, including the accused's record, temperament, desperateness of his situation, his physical condition; the security situation in the courtroom and courthouse; and whether there was an adequate means of providing security that was less prejudicial. Kunze, 2007 ND 143, ¶ 18, 738 N.W.2d 472. If visible restraints are used, the court must make case-specific findings and explain its reasons on the record, justifying the use. Id. at ¶¶ 18, 21, 24. When 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. The State must prove 'beyond a reasonable doubt that the shackling error complained of did not contribute to the verdict obtained.' " Deck, at 635, 125 S.Ct. 2007 (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)).

[¶ 11] In a pretrial motion Moncada requested the court order the defendants wear non-visible restraints:

counsel for the Defendant is requesting that Joseph Daniel Moncada be allowed to appear before the finder of fact without visible restraints and in non-jail garb. There is a restraint that may be worn underneath the clothing of an accused that is more than adequate for security and still allows sedate movement to and from the witness stand with nothing more than a limp.

Aguero joined Moncada's motion. In the March 19, 2009, pretrial conference the court granted Moncada's motion, stating, "we'll grant the Defendant's Motion for street attire and non-visible restraints." The defendants requested the court order non-visible restraints, and the court granted the motion. Because the defendants requested restraints, they waived any claim that the court violated their constitutional rights by failing to make the required findings about the necessity of restraints. Cf. State v. Klose, 334 N.W.2d 647, 651 (N.D.1983) ("a person legally should not be permitted to benefit from an error resulting from or through the action that he promoted or instigated"; a defendant cannot complain and use to his advantage an error caused by the court's actions at the defendant's request).

[¶ 12] We have also said a court's findings on the necessity of restraints should include "the reason for not accommodating a request for one type of restraint rather than the other when the reason is not obvious on the record." Kunze, 2007 ND 143, ¶ 24, 738 N.W.2d 472. If Moncada's pretrial motion can be interpreted as a request for a specific type of restraint, the court granted the motion as requested. Although Moncada and Aguero were later restrained with leg shackles instead of restraints worn under clothing, the court did not make any findings about the reason for not accommodating the defendants' request. The defendants objected to the leg shackles, arguing they were potentially visible to the jury. Although an argument that there should have been findings about the reason for not accommodating the defendants' request for a certain type of restraint could have been raised more clearly, it was error to use another type of restraint without the required findings.

[¶ 13] The Deck standard applies "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury," Deck, 544 U.S. at 635, 125 S.Ct. 2007, but failure to make findings about the court's reason for not accommodating a request for a specific type of restraint is harmless when there is no evidence the jury saw the restraints orthe restraints interfered with a defendant's defense. See People v. McWhorter, 47 Cal.4th 318, 97 Cal.Rptr.3d 412, 212 P.3d 692, 732 (2009) (an unjustified or unadmonished shackling is harmless when there is no evidence the jury saw the restraints); Mendoza v. Berghuis, 544 F.3d 650, 654-55 (6th Cir.2008) ( Deck applies only to visible restraints). In this case, there is no evidence in the trial record that the jury saw the restraints. It is not clear from the record what type of restraints the defendants were wearing, only that they were leg restraints with chains. There is evidence in the record that the tables the defendants sat at during the trial blocked the view the jury had of their feet and that boxes were placed around the table to further obstruct the jury's view. The court specifically found the view of the defendants' feet was properly obstructed. Although Aguero claims jurors may have seen or heard the restraints when they were unexpectedly brought into the courtroom on one occasion and the defendants rushed to their seats, the parties did not approach the court during the trial with any concerns or request the record reflect the jury saw or heard either of the defendants' restraints. There was no evidence from jurors that they saw the restraints. Cf. Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir.1999) (five jurors testified they saw the restraints during the trial). There is nothing in the record supporting the defendants' claims that the...