State v. Wall, 10CR0284MI; A146689.

• Citation: 252 Or.App. 435,287 P.3d 1250
• Decision Date: 26 September 2012
• Docket Number: 10CR0284MI; A146689.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Sherie W. WALL, Defendant–Appellant.
• Court: Court of Appeals of Oregon

252 Or.App. 435

287 P.3d 1250

STATE of Oregon, Plaintiff–Respondent,

v.Sherie W. WALL, Defendant–Appellant.

10CR0284MI; A146689.

Court of Appeals of Oregon.

Argued and Submitted July 31, 2012.

Decided Sept. 26, 2012.

Lindsey K. Detweiler, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jeremy C. Rice, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before ARMSTRONG, Presiding Judge, and BREWER, Judge, and DUNCAN, Judge.

BREWER, J.

Defendant appeals a judgment of conviction, following conditional guilty pleas, for driving under the influence of intoxicants (DUII), ORS 813.010, and recklessly endangering another person, ORS 163.195. In her sole assignment of error, defendant challenges the trial court's denial of her motion to remove a leg restraint that had been placed under her clothing for her appearance at trial. We reverse and remand.

At her arraignment hearing, defendant executed a conditional release agreement that permitted her to remain out of custody pending trial. She had 13 prior felony convictions. However, she had never been convicted of escape. Before trial, defendant asked that her release be revoked so that she would receive credit for time served in any sentencing proceeding in this case. Thus, on the day of trial, defendant was an inmate in the Douglas County jail. A jail deputy brought her into the courtroom with a leg restraint on her right leg.

Before trial, defendant made a motion for removal of the leg restraint. The trial court held a hearing on the motion. Defendant testified that the restraint caused her to walk with a limp and that it made her feel “like a criminal” and like she could not communicate freely with her attorney. The brace made defendant's pants bulge by her ankle, knee, and thigh. She had elected to wear both slacks and a dress to court because an observer would be able to “tell that the brace [was] on under [her] pants so [she] thought that [she] could cover” it up with a dress. The deputy testified at the hearing that defendant was restrained because of her jail classification as a “medium inmate.” However, the deputy did not know why defendant had received that classification.

The trial court denied defendant's motion:

“So and in looking I can see that [defendant] has pants that are covering the shackle. It is the—the Corrections Division's decision as far as they do the classifications for inmates and I do not do those. I have looked and I agree with [the prosecutor] that when she's ready to testify we can take a break and have her take the witness stand and do the same when she goes to step off the witness stand. She—I can see that she's somewhat upset but I—we can take a little break for her to collect herself. I do not believe that this would be prejudicial. It's not visible, it's not on the outside of her clothing. And the jury is going to be in the first row. There's a—the front of the jury box kind of covers. You can't really see over that, so I do not believe there would be any prejudice to [defendant]. So if she needs a little break, it's already a little late, but we'll go ahead and take a ten minute break if she needs to be able to collect herself.”

After the trial court denied the motion, defendant entered conditional guilty pleas to the DUII charge and one recklessly endangering count pursuant to ORS 135.335, and the court entered a judgment of conviction on those offenses and sentenced defendant accordingly. The only issue on appeal is whether the trial court erred in denying defendant's motion for removal of the leg restraint.

The right of an accused to be free from physical restraint during a criminal trial has common-law and constitutional underpinnings. State v. Smith, 11 Or. 205, 207–08, 8 P. 343 (1883); State ex rel. Juv. Dept. v. Millican, 138 Or.App. 142, 145–46, 906 P.2d 857 (1995), rev. den.,323 Or. 114, 913 P.2d 1384 (1996). Specifically, 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. State v. Merrell, 170 Or.App. 400, 403, 12 P.3d 556 (2000), rev. den.,331 Or. 674, 21 P.3d 96 (2001). Because the pertinent analysis under Oregon law is similar to the analysis under the federal constitution, we do not separately address defendant's due process argument.¹

The use of restraints “impinge[s] on the presumption of innocence and the dignity of the judicial proceedings and may inhibit [a defendant's] consultation with his attorney and his [or her] decision whether to take the stand as a witness.” State v. Kessler, 57 Or.App. 469, 474, 645 P.2d 1070 (1982). Although most often invoked as a safeguard against potential jury prejudice, the right to stand trial without restraints also ensures that defendants may face the court “with the appearance, dignity and self-respect of a free and innocent [person].” Id. at 472, 645 P.2d 1070. In State v. Long, 195 Or. 81, 91, 244 P.2d 1033 (1952), the court explained:

“ ‘The right of a prisoner undergoing trial to be free from shackles, unless shown to be a desperate character whose restraint is necessary to the safety and quiet of the trial, is Hornbook law. The reasons given are: “That his mind should not be disturbed by any uneasiness his body or limb should be under.” State v. Temple, 194 Mo. 237, 92 S.W. 869, 872 [ (1906) ], in which the author of the opinion states and quotes from Rex v. Layer, 16 How St Tr 94: that such restraint upon a prisoner “inevitably tends to confuse and embarrass his mental faculties, and thereby-materially to abridge and prejudicially affect his constitutional rights of defense;” citing People v. Harrington, 42 Cal. 165, 10 Am Rep 296 [ (1871) ], and that, “A prejudice might be created in the minds of the jury against a prisoner who should be brought before them handcuffed and shackled, which might interfere with a fair and just decision of the question of the guilt or innocence of such prisoner.’ ”

(Quoting Eaddy v. People, 115 Colo. 488, 491, 174 P.2d 717 (1946)).

With that host of concerns in mind, we held in State v. Taylor, 123 Or.App. 343, 348 n. 3, 858 P.2d 1358 (1993), that, “[t]o restrain a defendant during trial[,] the judge must find, on the record, that the defendant posed an immediate or serious risk of committing dangerous or disruptive behavior, or that he posed a serious risk of escape.” We also have stated that restraint of a defendant during trial without substantial justification results in manifest prejudice. State v. Glick, 73 Or.App. 79, 82, 697 P.2d 1002 (1985); State v. Schroeder, 62 Or.App. 331, 337–38, 661 P.2d 111,rev. den.,295 Or. 161, 668 P.2d 380 (1983).

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.” State v. Moore, 45 Or.App. 837, 839–40, 609 P.2d 866 (1980). In exercising that discretion, the court must receive and evaluate relevant information and must make a record allowing appellate review of its decision. Kessler, 57 Or.App. at 473, 645 P.2d 1070. The information need not be presented in a formal adversarial proceeding, but it must provide a basis for the trial court to make an independent assessment of the risk. Id. Although a sheriff's deputy or a prosecutor may provide helpful and necessary information in order to assist in the assessment of the risk posed by an unrestrained defendant, the trial court may not simply accept the conclusions of others; it must make an independent determination that restraint is justified. See State v. Bird, 59 Or.App. 74, 77, 650 P.2d 949,rev. den.,294 Or. 78, 653 P.2d 999 (1982). We examine the trial court record to determine if there is evidence providing a particularized basis to require a defendant to wear restraints. Glick, 73 Or.App. at 82–83, 697 P.2d 1002.

On appeal, defendant argues:

“Here, there was no evidence, and therefore no finding that defendant's restraint was necessary to ensure the safety or quiet of the trial. Indeed, the court did not give any consideration to the issue, beyond noting the jail staff's preference and giving effect to that preference. The jail's desire that defendant be shackled during her trial is insufficient to support a finding that she would not conduct herself appropriately during trial. That does not satisfy the state and federal constitutional guarantees.”

According to defendant, the state failed to establish any risk that defendant would be disruptive or dangerous, or that she would try to escape. Thus, defendant reasons, the trial court was unable to rely on any specific and articulable facts that would have supported a determination that she required restraint.

In response, the state primarily focuses on the fact that the restraint that defendant wore would not have been visible to a jury. The state explains:

“But in cases such as this, where restraints are not visible to the jury, prejudice is not as significant and it is not presumed. [ State v.] Bates, 203 Or.App. [245], 252–52, [125 P.3d 42 (2005), rev. den.,340 Or. 483 (2006) ]. Thus, their use is not, by default, impermissible. Depending on the circumstances, invisible restraints may or may not be appropriate.

“Because the use of invisible, minimally-intrusive restraints is not necessarily impermissible—that is, their use may or may not be appropriate, depending on the circumstances of the case—this court should require a lesser showing than what is required in so-called ‘shackling’ cases. And this court should review the trial court's decision for an abuse of discretion. See Kessler, 57 Or.App. at 473 (generally, trial courts have discretion to determine ‘appropriate security measures necessary during trial’). Here, the trial court...