State v. Moen

• Decision Date: 16 December 1971
• Docket Number: No. 10554,10554
• Citation: 94 Idaho 477,491 P.2d 858
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Kenneth MOEN et al., Defendants-Appellants.
• Court: Idaho Supreme Court

Page 858

491 P.2d 858

94 Idaho 477

STATE of Idaho, Plaintiff-Respondent, v. Kenneth MOEN et al., Defendants-Appellants.

No. 10554.

Supreme Court of Idaho.

Dec. 16, 1971.

Rayborn, Rayborn, Webb & Pike, Twin Falls, for appellants.

W. Anthony Park, Atty. Gen., Martin R. Ward, Deputy Atty. Gen. and Charles P. Brumbach, Asst. Atty. Gen., Boise, for respondent.

DONALDSON, Justice.

This is an appeal by three defendants-Kenneth Moen, Earl S. Carver, and Patrick Joseph Kinner (also known as Ernest Larry Ware)-who were convicted of the crime of escape by one charged with a felony. ¹ After a jury trial held in the District Court of the Fifth Judicial District in and for the County of Twin Falls in July, 1969, they were sentenced to imprisonment for terms not to exceed five years. The defendants appeal their convictions on the ground that they were denied a fair and impartial trial in several respects.

In the presence of the panel of prospective jurors, counsel for the defendants requested that the defendants' handcuffs be removed. The trial judge asked the advice of the sheriff, who advised against it, and the motion was denied.

Immediately after opening statements were made, the prosecuting attorney introduced certified copies of executive warrants issued by the Governor of Nevada; these warrants had been issued upon the request of the State of Idaho for a robbery committed in Twin Falls County. Also introduced with the warrants was an exemplified copy of the minutes of a Nevada court proceeding in which the validity of these warrants was upheld. Counsel for the defenants did not object to this evidence.

On direct examination, the sheriff testified that at the time of their escape these defendants were being held in the Twin Falls County Jail on a charge of robbery and that subsequently they had been arrested for a burglary committed after their escape. On the defendants' motion, the trial court instructed the jury to disregard any mention of the burglary charge. The court did not instruct them to disregard the testimony concerning the robbery charge because it was relevant to show that these defendants were charged with a felony at the time of escape, which was an element of the crime for which they were being tried, but the court did advise the jury that the defendants were being tried for the crime of escape and not for any alleged robbery or burglary. ² At the close of the state's case, the defendants moved to dismiss on the ground that they were illegally incarcerated at the time of their escape; after allowing the defense to make an offer of proof concerning the illegality of defendants' custody, the trial court denied this motion. Defense counsel then informed the court that the only evidence he had planned to put on in defense had to do with the illegality of custody, and since the court had already ruled on the issue, the defense rested without presenting any proof to the jury.

I.

The appellants' first contention is that they were denied a fair and impartial trial because they were forced to wear handcuffs at trial. Prior to voir dire examination, but in the presence of the entire panel of prospective jurors, the following dialogue between court and counsel took place:

'DEFENSE COUNSEL: Your Honor, the defendants have asked if it's at all possible that they have their handcuffs removed?

THE COURT: I will ask the advice of Sheriff Corder.

PROSECUTING ATTORNEY: The sheriff advises against it.

THE COURT: Very well. Your motion will be denied.'

The law applicable to the issue raised by the appellants is concisely summarized in 23 C.J.S. Criminal Law § 977 (1961):

'During the trial accused should, as a general rule, be free from shackles, except in so far as the trial court, in its sound discretion, deems them necessary to prevent the escape of accused or his forcible release, to restrain him from doing violence to others, or from injuring himself, or to prevent such misconduct as would obstruct the work of the court; and such exceptions apply particularly while accused is being brought into or taken from court. If accused is shackled without such necessity, it is reversible error, unless it is clear that no prejudice in the minds of the jury was caused thereby.'

Furthermore, when reasonable precautions are taken to retain custody of the accused, the fact that they indicate to the jury that the defendant is a prisoner and perhaps a dangerous character does not deprive him of a fair trial. People v. Ross, 67 Cal.2d 64, 60 Cal.Rptr. 254, 429 P.2d 606 (1967), rev'd on other grounds, 391 U.S. 470, 88 S.Ct. 1850, 20 L.Ed.2d 750 (1968); People v. Burwell, 44 Cal.2d 16, 279 P.2d 744 (1955), cert. denied, 349 U.S. 936, 75 S.Ct. 788, 99 L.Ed. 1265 (1955).

Although the sheriff has some initial responsibility for determining whether an accused should be handcuffed during a jury trial, the trial judge must, in fulfilling his duty to preside over the trial, decide the question for himself. People v. Mendola, 2 N.Y.2d 270, 159 N.Y.S.2d 473, 140 N.E.2d 353 (1957); State v. McKay, 63 Nev. 118, 165 P.2d 389 (1946), rehearing denied, 63 Nev. 118, 167 P.2d 476 (1946). In exercising his discretion, the judge need not rely only upon evidence formally offered and admitted at trial. His knowledge may properly stem from official records or what law enforcement officers have told him. State v. McKay, supra. In addition, the trial court may take judicial notice of facts generally known within the limits of its jurisdiction. State v. McKay, supra; Makley v. State, 49 Ohio App. 359, 197 N.E. 339 (1934). However, the information relied upon should be shown on the record before trial and out of the presence of the jury, and the defendant should be afforded reasonable opportunity to meet that information. This will provide a record on which an appellate court can determine whether the trial judge has properly exercised his discretion-i.e., whether there were reasonable grounds for apprehension as to defendant's conduct. United States v. Samuel, 431 F.2d 610 (4th Cir. 1970) (requesting that the district judge supplement the record), 433 F.2d 663 (4th Cir. 1970) (final decision, per curiam), cert. denied, 401 U.S. 946, 91 S.Ct. 964, 28 L.Ed.2d 229 (1971); Woodards v. Cardwell, 430 F.2d 978 (6th Cir. 1970), cert. denied, 401 U.S. 911, 91 S.Ct. 874, 27 L.Ed.2d 809 (1971); People v. Mendola, supra; see Loux v. United States, 389 F.2d 911 (9th Cir. 1968), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968). If defense counsel desires to object to the defendant's being brought before the court in handcussf, he should do so before the jurors arrive or after requesting that the court excuse them. The entire matter should then be aired by a hearing, on the record, so as to enable the judge to make his determination out of the presence of the jury and to state the reasons for his decision for the appellate court.

Two separate issues are raised in connection with the trial court's refusal to remove the defendants' handcuffs: (A) Was the failure to remove the handcuffs an abuse of discretion? If not (as we hold), then the fact that the defendants were initially brought before the jury panel handcuffed clearly does not constitute prejudicial error. (B) Was the consideration and denial of the motion to remove the defendants' handcuffs-in the presence of the jury panel-prejudicial error in this case? We hold that it was not.

A.

The fact that the trial court in this case did not follow the procedure outlined above does not entitle the defendants to a new trial upon the ground that the court prejudicially abused its discretion where, as here, the record itself sufficiently justifies the court's refusal to order the handcuffs removed. People v. Mendola, supra. As the New York Court of Appeals said in Mendola:

'It may be that in determining whether handcuffs are reasonably necessary in a given case, the better practice would be for the trial judge to take testimony as to the necessity for the handcuffs and state for the record his reasons for confirming the decision of the Sheriff in that respect. Such procedure would undoubtedly facilitate a review by the appellate courts of the trial court's determination. However that may be, the fact that the trial court has not followed what might be considered the 'better practice' before approving the Sheriff's action, cannot serve to justify the ordering of a new trial upon the ground that the trial court has prejudicially abused its discretion as a matter of law where, as here, it appears from the record itself that the Sheriff had reasonable cause for handcuffing the accused. The fact that we are unable to determine from the record how detailed a knowledge of the facts of the escape and of defendant's compulsive urge to escape from custody the trial court possessed, is not dispositive. What is dispositive is the fact that the record reveals sufficient evidence to justify the trial court's refusal to order the handcuffs removed from Mendola.' 159 N.Y.S.2d at 478, 140 N.E.2d at 356.

Turning our attention to the record presented on this appeal, we note that the situation with which the trial court was faced strongly dictated that it refuse to remove the defendants' handcuffs. These defendants were on trial for having escaped from the Twin Falls County Jail. Only two days before this trial, in the same jurisdiction, they had been convicted of burglary, thereby giving them a strong motive for making another escape attempt. In addition, the very fact that there were three defendants here made the risk of an escape attempt greater, with the concomitant increased danger to those present in the courtroom and to the public generally. We must evaluate these facts with the following notion in mind:

'It is too obvious for argument that hardly any other matter can better be relegated to the discretion of the trial court than that of safeguarding the court, counsel, jury, and spectators, and...