State v. Kessler

• Jurisdiction: Oregon
• Citation: State v. Kessler, 645 P.2d 1070, 57 Or.App. 469 (Or. App. 1982)
• Citation: 57 Or.App. 469,645 P.2d 1070
• Docket Number: Nos. CA,s. CA
• Parties: STATE of Oregon, Respondent, v. Rodney Dean KESSLER, Appellant. A22010, CA A22011, CA A22012, CA A22013, 125550, 125873, 125874 and 125875.
• Court: Oregon Court of Appeals
• Decision Date: 02 February 1982

Page 1070

645 P.2d 1070

57 Or.App. 469

STATE of Oregon, Respondent, v.Rodney Dean KESSLER, Appellant.

Nos. CA A22010, CA A22011, CA A22012, CA A22013, 125550,

125873, 125874 and 125875.

Court of Appeals of Oregon.

Feb. 2, 1982.

Reconsideration Allowed May 26, 1982.

Gary D. Babcock, Public Defender, and Marilyn C. McManus, Deputy Public Defender, Salem, for petitioner.

Before BUTTLER, P.J., and RICHARDSON and WARDEN, JJ.

RICHARDSON, Judge.

Defendant petitioned for reconsideration of our decision affirming his conviction, 55 Or.App. 1029, 643 P.2d 423(1982).The petition is allowed, and we reverse and remand for a new trial.

The sole issue on appeal is whether the court erred in denying defendant's motion to remove his leg shackles during trial.Defendant was charged by separate indictments with the offenses of assault in the fourth degree, escape in the first degree and two counts of assault in the second degree.The victims of the three assaults were alleged to be police officers.The charges were consolidated for trial to a jury.

Defendant was brought to the courtroom on the day of trial wearing prison clothes described as "blue pants and blue shirt."He also was wearing leg shackles.Outside the presence of the jury panel, defendant asked the court to order removal of the leg shackles.His counsel stated that, other than the assaults alleged, defendant had shown no tendency toward escape or violent behavior before or since the incident in question.

The prosecutor stated:

"Just to clarify for the record, with respect to Mr. Kessler's garb it ought to be noted that he's dressed in prison garb at his election.He was offered the opportunity to dress in civilian clothes and chose not to.I have asked the Court to keep the leg irons on Mr. Kessler and I'm doing so because based on the information informed to ushe presents a security release which occurred in the course of contacts alleged by the State in his attempt to escape from custody, which was a successful attempt, as a matter of fact.Mr. Kessler also has a prior conviction for Resisting Arrest.I think the circumstances do suggest that it's in everybody's best interests to maintain a minimum security measure.

"I might note that he's presently seated in the courtroom, and, frankly, the leg irons should not be terribly obtrusive to the jury.I'm sure up to the time he's prepared to take the stand there is no reason why they should take any substantial notice of those restraints."

On inquiry from the court, defendant confirmed that he had elected to wear his prison clothing but said, "I didn't figure that the jury would know these are prison garbs to start with."The judge agreed and said he often wore that type of clothing after work.The record discloses no other information respecting the motion.

Oregon very early recognized the right of a criminal defendant to appear free of physical restraints in a trial before a jury.State v. Smith, 11 Or. 205, 8 P. 343(1883).The court there cited People v. Harrington, 42 Cal. 165, 10 Am.R. 296 (1871), as the basis of its conclusion that refusal of the trial court to remove defendant's leg shackles was reversible error.See alsoState of Oregon v. Long, 195 Or. 81, 244 P.2d 1033(1952).

The California Supreme Court in People v. Duran, 16 Cal.3d 282, 127 Cal.Rptr. 618, 545 P.2d 1322, 90 A.L.R.3d 1(1976), reaffirmed and expanded the principle announced in People v. Harrington, supra.After discussing the history of the common law and due process right to be tried free of restraints, the court said:

"* * * We believe that it is manifest that the shackling of a criminal defendant will prejudice him in the minds of the jurors.When a defendant is charged with any crime, and particularly if he is accused of a violent crime, his appearance before the jury in shackles is likely to lead the jurors to infer that he is a violent person disposed to commit crimes of the type alleged. * * *

"The removal of physical restraints is also desirable to assure that 'every defendant is ... brought before the court with the appearance, dignity, and self respect of a free and innocent man.' * * *

"We believe that possible prejudice in the minds of the jurors, the affront to human dignity, the disrespect for the entire judicial system which is incident to unjustifiable use of physical restraints, as well as the effect such restraints have upon a defendant's decision to take the stand, all support our continued adherence to the Harrington rule. * * *"16 Cal.3d at 290, 127 Cal.Rptr. 618, 545 P.2d 1322.

The California Supreme Court concluded that visible physical restraints should be the exception and should be maintained only on a showing of a manifest need for the restraints.

In State v. Moore, 45 Or.App. 837, 609 P.2d 866(1980), we cited State v. Smith, supra, andPeople v. Duran, supra, and concluded:

"* * * To restrain a defendant without substantial justification is a ground for reversal, * * * but a trial judge has the discretion to order the shackling of a defendant if there is evidence of an immediate and serious risk of dangerous or disruptive behavior."45 Or.App. at 839-40, 609 P.2d 866.

We held that the trial court did not abuse its discretion in declining to remove defendant's leg shackles.The trial court record indicated that defendant had assaulted figures of authority and fellow prisoners while in custody awaiting trial and while en route to the courthouse and that he had been a serious behavior problem right up to the beginning of trial.

We indicated in Moore that we will generally not second guess a trial court as to appropriate security measures necessary during trial.An exercise of discretion is a judicial decision which must be based on an independent analysis of the factors that go into the decision.Although a trial judge is in a better position to evaluate the defendant in the context of the proceedings and to decide what security measures are required, if the judge neither receives nor evaluates relevant information, he has not exercised judicial discretion.The trial court must make a record of the information received as a basis for the decision in order for this court to review the exercise of discretion.The information utilized need not come in a formal adversary proceeding.The court may utilize credible information from any source.State of Oregon v. Long, supra.

In this case all the information that the court had was the fact that defendant was charged with three assaults on police officers and an escape and had a previous conviction for resisting arrest.The prosecutor said the state had information which led the state to believe the defendant was a security risk.There is no indication what that information was.The trial court could not simply accept the conclusion of the prosecutor that the...