No. 3--04--0742 _________________________________________________________________ Filed April 19, 2007. IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) v. ) No. 01--CF--1186 ) SAMUEL E. WOODS, ) Honorable ) Jerelyn D. Maher, Defendant-Appellant. ) Judge, Presiding. _________________________________________________________________
JUSTICE SCHMIDT delivered the opinion of the court: _________________________________________________________________
In a bench trial, the defendant, Samuel E. Woods, was found
guilty of aggravated robbery (720 ILCS 5/18--5(a) (West 2000))
and home invasion (720 ILCS 5/12--11(a)(2) (West 2000)). The
trial court sentenced him to extended terms of 20 and 40 years of
imprisonment for these offenses, respectively. On appeal, the
defendant argues that the trial court erred by failing to remove
his leg shackles during three court proceedings and by allowing
one of his wrists to remain handcuffed during one of these
proceedings. Additionally, he contends that the State failed to
prove beyond a reasonable doubt that he committed the offenses.
We affirm. I. FACTS
A. Leg Shackles and Handcuffs
The bench trial took place on July 23 and October 17, 2003,
and February 18, 2004. At the July 23 proceeding, the following
exchange took place among the court, defense counsel, and the
court's deputy:
"[DEFENSE COUNSEL]: *** I would ask that Mr. Woods
be unhandcuffed or in some fashion handcuffed
differently so he can take notes during the trial,
whatever methodology is appropriate on that.
THE COURT: Any problem with that, Officer?
THE DEPUTY: Usually we don't if they are in
uniform, there is no jury trial, your Honor. But it's
up to you.
THE COURT: Do you have an alternative?
THE DEPUTY: That's it.
THE COURT: That's it.
[DEFENSE COUNSEL]: He is shackled, so it's not
like--
THE COURT: What about legs? Is he shackled by his
legs?
THE DEPUTY: Uh-huh.
THE COURT: All right, take his cuffs off then."
2 At the October 17 proceeding, the following exchange took
place among the court, defense counsel, and the deputy:
"[DEFENSE COUNSEL]: Judge, could we have Mr.
Wood's [sic] hands in some way unsecured so he could
take notes[?]
THE COURT: Does he have--is he shackled in some way?
THE COURT DEPUTY: Yes, Judge.
THE COURT: Okay. He can have his hands uncuffed."
At the February 18 proceeding, the following exchange took
place between the court and defense counsel:
"[DEFENSE COUNSEL]: *** Judge, could I have one or
both of his handcuffs removed for note-taking
purpose[s] please?
THE COURT: You can have one."
B. Aggravated Robbery
The defendant was charged with having committed aggravated
robbery and home invasion in Peoria on the evening of December 8,
2001. Lynda Beckwith testified that she was a cashier at a gas
station in Peoria that evening. During the trial, the court
viewed an audio-video tape of the incident, which was recorded by
the gas station's security camera and microphone.
In the tape, the defendant asked Beckwith how much a bag of
peanuts cost. After Beckwith replied, the defendant brought the
peanuts to the counter. The defendant gave money to Beckwith.
3 Beckwith opened the cash register, placed the defendant's money
in the cash drawer, and got change out of the drawer. While
Beckwith was occupied with the cash register, the defendant
opened his jacket with his right hand. As Beckwith began to
close the cash drawer, the defendant reached across the counter
and placed his left hand on the drawer, preventing Beckwith from
closing it. The defendant raised his right hand above the level
of his shoulder with his right index finger extended. He then
brought his right hand down to his waist and gestured to his
waist with his right hand. After the defendant's gesture,
Beckwith immediately stepped back from the area of the counter
and cash register and placed her hands behind her back. Next,
the defendant reached across the counter with his right hand and
removed the paper currency from the cash drawer. The defendant
then exited the building through its front door.
Beckwith testified that after the defendant opened his
jacket, she saw "something wooden" in the defendant's waistband
and "presumed it was a gun." She said, "So, I just stepped back
and *** let him take the money." Beckwith later identified the
defendant as the robber both in an in-person lineup at the police
station and in the courtroom during the trial.
After the defendant was arrested, he told police that the
wooden object in his waistband was the end of a crutch. He could
not remember whether the piece of the crutch was all wood or was
4 wood covered with padding. The defendant did not produce the
piece of crutch for the police. The police did not recover a
wooden object during their investigation after the defendant's
arrest.
C. Home Invasion
A witness at the gas station provided police with a
description of the car the defendant was driving, which was
registered to the defendant's former girlfriend. As the police
followed the vehicle in their squad cars, the defendant stopped
the car, exited, and fled on foot through the backyards of nearby
residences. The police pursued the defendant on foot.
Shonda Sledge said that on the evening in question, she was
in her home, which is near the gas station. Her husband Darrell
and her children also were in the home. While Shonda was in the
bedroom, she noticed that there were several police officers in
her backyard.
Next, Shonda heard the defendant open the screen door and
kick open the French doors to the house. Shonda met the
defendant in the living room and told him to leave. She then ran
to the kitchen and picked up the phone with her left hand. As
Shonda was attempting to call the police, the defendant applied
pressure to her left wrist with one of his hands, which caused
her to drop the phone. Regarding her wrist, Shonda said, "It was
tender and real sore a couple of days afterwards." After Shonda
5 dropped the phone, she ran out of the house through the kitchen's
exterior door and into the backyard.
Darrell testified that during the incident, he retrieved his
handgun from the bedroom. When he went into the kitchen, he saw
the defendant and his wife struggling for control of the phone.
After Shonda ran out of the house, Darrell told the defendant to
leave. Instead of leaving, the defendant walked to the living
room, and Darrell pursued him. In the living room, the defendant
attempted to take the gun from Darrell.
While Shonda was in the backyard, she yelled to the police
for help. She told the police that a man had broken into her
home and was still there. The police then entered the residence
and arrested the defendant.
At the conclusion of the trial, the court found the
defendant guilty of the offenses. Defendant filed a motion for a
new trial which did not raise an issue with respect to the
shackles/handcuffs. The court denied the motion. The court
sentenced the defendant, and he appealed.
II. ANALYSIS
The defendant submits that the trial court erred by failing
to remove his leg shackles during three court proceedings and by
allowing only one of his handcuffs to be removed during one of
these proceedings. The State argues that the defendant has
6 forfeited these issues by failing to raise them both in the trial
court and in a posttrial motion. The defendant, therefore, asks
us to analyze these issues for plain error.
Initially, we note that the defendant in this case invited
two of the alleged errors that he has raised. A defendant cannot
invite the trial court to adopt a certain procedure and then
argue on appeal that the trial court's action was error. People
v. Rossi, 52 Ill. 2d 13, 284 N.E.2d 275 (1972); People v. Carbona
27 Ill. App. 3d 988, 327 N.E.2d 546 (1975).
At the July 23 proceeding, defense counsel asked that the
defendant's handcuffs be removed. The court's deputy asserted
that the standard procedure was not to remove the handcuffs of a
defendant in prison uniform. Defense counsel then began to
suggest to the trial court that removing the defendant's
handcuffs was permissible because the defendant was otherwise
shackled. From the comments of the judge and the court deputy
that followed defense counsel's suggestion, it is apparent that
defense counsel was referring to leg shackles. Thus, defense
counsel's request to remove the defendant's handcuffs depended
upon the defendant's leg shackles remaining in place. The
defendant cannot now challenge the fact that his legs were
shackled at the July 23 proceeding when this instance of leg
shackling was invited by defense counsel.
7 At the February 18 proceeding, defense counsel gave the
trial court a choice between removing one or both of the
defendant's handcuffs. The court chose to remove one of the
handcuffs. Because defense counsel invited the court to remove
only one of the defendant's handcuffs, the defendant cannot now
complain that one of his hands remained cuffed. We next examine
whether it was error for the trial court to fail to remove the
defendant's leg shackles at the October 17 and February 18
proceedings.
Generally, an issue is forfeited on appeal if it was not
raised in the trial court through both a contemporaneous
objection and a written posttrial motion. People v. Enoch, 122
Ill. 2d 176, 522 N.E.2d 1124 (1988). In the instant case, the
defendant did not object to remaining in leg shackles at the
October 17 and February 18 proceedings. Additionally, the
defendant did not argue the issue of leg shackling in a posttrial
motion. Thus, the defendant has forfeited this issue on appeal.
See Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124.
However, the forfeiture rule does not apply if plain error
occurred. 134 Ill. 2d R. 615(a). We can find plain error only
where (1) the evidence was closely balanced, or (2) the error so
prejudiced the defendant's case that it resulted in an unfair
trial. People v. Allen, 222 Ill. 2d 340, 856 N.E.2d 349 (2006).
We, therefore, analyze the defendant's claims regarding his leg
8 shackling at the October 17 and February 18 proceedings for plain
error.
In the present case, the evidence concerning the offenses
was not closely balanced, as we discuss below regarding the
sufficiency of the evidence. Next, we consider whether the
defendant's trial was unfair because he remained in leg shackles
on October 17 and February 18.
In Allen, 222 Ill. 2d 340, 856 N.E.2d 349, the Illinois
Supreme Court stated that even in the absence of a jury, the
trial court must consider the factors listed in People v. Boose,
66 Ill. 2d 261, 362 N.E.2d 303 (1977), to determine if
restraining the defendant is necessary. A trial court's failure
to consider the Boose factors is a violation of a defendant's due
process rights. Allen, 222 Ill. 2d 340, 856 N.E.2d 349. In the
instant case, the record shows that the trial court did not
consider the Boose factors. Therefore, the trial court committed
due process errors by failing to hold Boose hearings before the
October 17 and February 18 proceedings.
However, the Allen court also stated that the trial court's
failure to conduct a Boose hearing does not amount to plain error
unless the defendant can show that his restraint caused an unfair
trial because it hindered his ability to assist his counsel,
compromised his presumption of innocence, or demeaned the dignity
of the proceedings. Allen, 222 Ill. 2d 340, 856 N.E.2d 349. In
9 the present case, the record does not show that the defendant's
leg shackling on October 17 and February 18 hindered his ability
to assist his attorney, compromised his presumption of innocence,
or demeaned the dignity of the proceedings.
In summary, the evidence in this case was not closely
balanced, and the defendant has not shown that his physical
restraint resulted in an unfair trial. Therefore, we hold that
the trial court did not commit plain error by allowing the
defendant to remain in leg shackles during the October 17 and
February 18 proceedings.
The defendant contends that the State failed to prove beyond
a reasonable doubt that he committed the elements of aggravated
robbery. Specifically, he argues that the State failed to show
that he indicated verbally or by his actions that he was armed
with a firearm.
"A person commits aggravated robbery when he ***
takes property from the person or presence of another
by *** threatening the imminent use of force while
indicating verbally or by his *** actions to the victim
that he *** is presently armed with a firearm or other
dangerous weapon ***. This offense shall be applicable
even though it is later determined that he *** had no
firearm or other dangerous weapon *** when he ***
10 committed the robbery." 720 ILCS 5/18--5(a) (West
2000).
When we review a claim of insufficient evidence, the
relevant inquiry is whether, after viewing the evidence in the
light most favorable to the prosecution, a rational trier of fact
could have found the essential elements of the offense beyond a
reasonable doubt. People v. Bishop, 218 Ill. 2d 232, 843 N.E.2d
365 (2006).
In this case, the wooden object that the defendant had in
his waistband was neither recovered by the police nor produced by
the defendant. However, Beckwith said that she saw a wooden
object in the defendant's waistband and presumed that it was a
gun. The defendant told the police that the wooden object in his
waistband was part of a crutch. Regardless of whether the object
was an actual weapon, a rational trier of fact could have
inferred that it appeared to be a dangerous weapon. Many
handguns have wood grips.
The videotape showed that the defendant made a gesture to
his waist with his right hand. A rational trier of fact could
have concluded beyond a reasonable doubt that by this gesture,
the defendant indicated that he was armed with a firearm or other
dangerous weapon.
In summary, taking the evidence in the light most favorable
to the prosecution, a rational trier of fact could have found
11 beyond a reasonable doubt that the State proved the elements of
aggravated robbery.
The defendant asserts that the State failed to show that he
committed the elements of home invasion beyond a reasonable
doubt. Specifically, he contends that the State did not prove
that he injured Shonda, under this court's holdings in People v
Bitner, 89 Ill. App. 3d 1106, 412 N.E.2d 721 (1980), and People
v. Boyer, 138 Ill. App. 3d 16, 485 N.E.2d 460 (1985). Both the
Bitner and Boyer courts stated that in order to prove an "injury"
under the home invasion statute, one must show that the victim
suffered "bodily harm."
"(a) A person *** commits home invasion when
without authority he *** knowingly enters the dwelling
place of another when he *** knows *** that one or more
persons is present *** and
***
(2) Intentionally causes an injury *** to any
person *** within such dwelling place." 720
ILCS 5/12--11(a) (West 2000).
In People v. Mays, 91 Ill. 2d 251, 256, 437 N.E.2d 633, 635-
36 (1982), the Illinois Supreme Court defined "bodily harm," in
the context of criminal battery, as "some sort of physical pain
or damage to the body, like lacerations, bruises or abrasions,
12 whether temporary or permanent." In the present case, the
defendant submits that because Shonda did not suffer a
laceration, bruise, or abrasion, she did not suffer "bodily
harm," as required by Bitner and Boyer.
Although the Bitner and Boyer courts required a showing of
"bodily harm" as an element of home invasion, more recent cases
from other districts of the appellate court have looked to the
plain language of the home invasion statute regarding the
"injury" element of the offense. See, e.g., People v. Ehrich,
165 Ill. App. 3d 1060, 519 N.E.2d 1137 (4th Dist. 1988); People
v. Garrett, 281 Ill. App. 3d 535, 667 N.E.2d 130 (5th Dist.
1996). The primary goal of statutory construction is to
determine and give effect to the legislature's intent. People v.
Jones, 214 Ill. 2d 187, 824 N.E.2d 239 (2005). The best
indication of the legislature's intent is the plain language of
the statute. Jones, 214 Ill. 2d 187, 824 N.E.2d 239. We will
not read exceptions, limitations, or conditions into a statute
that depart from its plain meaning. People v. McClure, 218 Ill.
2d 375, 843 N.E.2d 308 (2006).
In the present case, the legislature used the term "injury"
rather than the term "bodily harm" in the home invasion statute.
We will not read an exception, limitation, or condition into the
statute to say that "injury" means "bodily harm," contrary to our
previous rulings in Bitner and Boyer.
13 Furthermore, even if we were to consider, arguendo, our
supreme court's definition of "bodily harm" in Mays, the
definition only requires "some sort of physical pain or damage to
the body." The definition then provides examples "like
lacerations, bruises or abrasions." The definition does not
indicate that the examples are exclusive or exhaustive. Thus,
although "lacerations, bruises or abrasions" are sufficient to
prove that the victim suffered "physical pain or damage to the
body," these conditions are not necessary to show "physical pain
or damage to the body, *** whether temporary or permanent."
Mays, 91 Ill. 2d at 256, 437 N.E.2d at 635-36.
In this case, the record indicates that Shonda suffered pain
for a few days after the defendant applied pressure to her wrist.
Clearly, Shonda was injured by the defendant's actions. Thus, we
reject the defendant's assertion that the State failed to prove
that he committed the "injury" element of home invasion. Taking
the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found beyond a reasonable doubt
that the State also proved the elements of this offense.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the
Peoria County circuit court.
Affirmed.
CARTER, J., concurs.
14 JUSTICE McDADE, dissenting:
The majority has found that defendant cannot challenge the
fact that his legs were shackled at the July 23 proceeding or
that one of his hands remained cuffed at the February 18
proceeding, and that the trial court did not commit plain error
by allowing defendant to remain in leg shackles during the
October 17 and February 18 proceedings because the record does
not show that the shackling on October 17 and February 18
hindered defendant’s ability to assist his attorney, compromised
his presumption of innocence, or demeaned the dignity of the
proceedings. I disagree with the majority’s conclusion that the
trial court did not commit plain error when it, as the majority
admits, committed due process errors by failing to hold Boose
hearings before the October 17 and February 18 proceedings. Slip
order at 8. Therefore, I respectfully dissent.
I agree with the majority that the supreme court’s decision
in Allen controls the disposition of this appeal. The basis for
my disagreement lies in my belief that Allen actually requires
reversal of the judgment of the circuit court of Peoria County
rather than affirmance. I think a summary of my argument, that
will be set out in greater detail below, would be helpful.
SUMMARY OF ARGUMENT
Our supreme court has held that (1) "In the absence of
exceptional circumstances, an accused has the right to stand
15 trial with the appearance, dignity and self-respect of an
innocent and free person" and (2) "[i]t jeopardizes the
presumption’s [of innocence] value and protection and demeans our
justice for an accused without clear cause to be required to
stand in a courtroom in manacles or other restraints while he is
being judged." (Emphasis added.) In re Staley, 67 Ill. 2d 33,
37, 364 N.E.2d 72, 73 (1977). The Allen court concluded, citing
Staley: "Thus, even when there is no jury, any unnecessary
restraint is impermissible because it hinders the defendant’s
ability to assist his counsel, runs afoul of the presumption of
innocence, and demeans both the defendant and the proceedings."
(Emphasis added.) Allen, 222 Ill. 2d 340, 347, 856 N.E.2d 349,
353. Thus, trying defendant in "unnecessary" restraints is, by
definition, plain error.
Although these are the same reasons cited by the supreme
court in mandating a hearing to determine whether there are
legitimate reasons for restraining the defendant during his trial
(People v. Boose, 66 Ill. 2d 261, 265-66, 362 N.E. 2d 305
(1977)), the court decided in Allen that the mere failure to have
that hearing is not "plain error." Therefore, without an
objection by the defendant to the restraints and a showing that
the failure to hold the Boose hearing undermined his ability to
assist in his defense, jeopardized the presumption of innocence
16 and demeaned our system of justice, a forfeiture of this due
process right occurs.
To avoid the inadvertent nullification of case law that
retains the approval of the supreme court and remains good and
valid law of this state, we should utilize the presumption
present in those earlier cases that without a determination of
special circumstances, a defendant who is restrained during
his/her trial has been "unnecessarily restrained." Thus, we
would have to find "plain error" by operation of law.
ANALYSIS
The supreme court has stated unequivocally that "[i]n the
absence of exceptional circumstances," presumably as determined
by a Boose hearing, "an accused has the right to stand trial with
the appearance, dignity and self-respect of an innocent and free
person." Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73. The
supreme court has further stated that it "demeans our justice for
an accused without clear cause to be required to stand in a
courtroom in manacles or other restraints while he is being
judged." (Emphasis added.) Staley, 67 Ill. 2d at 37, 364 N.E.2d
at 73. With those clearly-stated principles in mind, I turn to
what constitutes plain error in cases where the evidence is not
closely balanced but where a defendant, contrary to his rights,
is tried in shackles without a finding on the record of
17 exceptional circumstances to justify depriving him of those
rights.
In Allen, the supreme court discussed the second prong of
the plain error test, relying on its holding in People v. Herron,
215 Ill. 2d 167, 830 N.E.2d 467 (2005). In Herron, the court
stated as follows:
"In the second instance, the defendant must
prove there was plain error and that the
error was so serious that it affected the
fairness of the defendant's trial and
challenged the integrity of the judicial
process. [Citation.] Prejudice to the
defendant is presumed because of the
importance of the right involved, ‘regardless
of the strength of the evidence.’
[Citation.] In both instances, the burden
of persuasion remains with the defendant.
[Citation.]" (Emphasis added.) Herron, 215
Ill. 2d at 186-87, 830 N.E.2d at 479-80.
Thus, it seems, the second prong of the plain error doctrine
embodies a two-part test. First there must have been an error at
trial. Second, that error must be one that a) affects the
fairness of the defendant’s trial and b) challenges the integrity
of the judicial process. The Allen court found that "while
18 defendant herein has proven a due process violation which
amounted to error by showing that he was required to wear an
electronic stun belt at trial without the court having first
determined that it was necessary, defendant has failed to
persuade this court ‘that the error was so serious that it
affected the fairness of [his] trial and challenged the integrity
of the judicial process.’" Allen, slip op. at 10, quoting
Herron, 215 Ill. 2d at 187, 830 N.E.2d at 479-80.
I agree with the majority’s finding that the evidence in
this case is not closely balanced. Therefore, if we are to find
plain error, it would be under the second prong of the plain
error rule. The failure to conduct the Boose hearing is error.
See Allen, slip op. at 10. More so, "a trial court’s failure to
examine the necessity of requiring a defendant to wear restraints
at trial is a due process violation." Allen, slip op. at 14.
Herron, with which the Allen court obviously agrees, tells us
that prejudice on account of this violation is presumed. We now
know that a due process violation that prejudices defendant is
not enough to satisfy the second prong. What we do not know is
what exactly a) affects the fairness of a defendant’s trial and
b) challenges the integrity of the judicial process--if not, in
either case, the prejudicial due process violation resulting from
the failure to conduct the "requisite [mandatory] hearing." But,
although the Allen court did say that this showing was
19 insufficient to prove "that [defendant’s] presumption of
innocence, ability to assist his counsel, or the dignity of the
proceedings was compromised" Allen, slip op. at 10), it also
said:.
"Any unnecessary restraint is impermissible
because it hinders the defendant’s ability to
assist his counsel, runs afoul of the
presumption of innocence, and demeans both
the defendant and the proceedings."
(Emphasis added.) Allen, slip op. at 4,
citing Staley, 67 Ill. 2d at 36-37, 364
N.E.2d at 73.
The only reasonable conclusion is that "plain error" as
defined by Allen in this context occurs not from the failure to
hold the Boose hearing but rather from a showing that the
restraints are unnecessary. I also note with particularity the
court’s reference to any unnecessary restraint, precluding any
argument in this case that removing defendant’s handcuffs
sufficed to permit him to assist his counsel while both legs
remained shackled.
The problem, of course, is how to determine that the
restraints were unnecessary when there was no hearing and were no
findings. Although it appears that, without the hearing, this is
an impossible showing for the defendant to make, I think there is
20 an answer – one that lies in the presumption behind the analysis
for when a defendant may be shackled during trial.
If we were to begin with the premise that shackling is in
all cases permissible, but a defendant may request a hearing to
determine whether they may be removed, then a failure to conduct
the hearing would not be plain error. This is true because under
this premise, shackling--if in all cases permissible unless
proved otherwise--could not have the effects on the trial listed
above. Otherwise we would not permit this to be the default
condition in the courts.
In reality, however, the law is to the contrary. Instead,
we begin with the premise that a defendant may never be shackled
during trial. See Boose, 66 Ill. 2d at 265-66, 362 N.E.2d at
3051. If, and only if, a court, after a hearing, determines in a
particular case that shackles are required on account of one or
more specific, demonstrable risks, may they be used. See Boose,
66 Ill. 2d 261, 266, 362 N.E.2d at 305 ("A defendant may be
shackled when there is reason to believe that he may try to
escape or that he may pose a threat to the safety of people in
the courtroom or if it is necessary to maintain order during the
1 "Most of the courts that have considered the question have held that an accused should never be placed in restraints in the presence of the jury ‘unless there is a showing of a manifest need for such restraints.’ [Citations.] The ABA Standards relating to jury trials provide: ‘Defendants * * * should not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order.’ [Citation.]"
21 trial") (emphases added); Deck v. Missouri, 544 U.S. 622, 629,
161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 2012 (2005) ("[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").
Under this premise, the one established by both our supreme
court and that of the United States, the failure to conduct the
hearing, i.e., to permit unnecessary restraints--since necessity
may only be determined after a Boose hearing -- must be plain
error because the presence of the shackles presumptively hinders
the defendant’s ability to assist his counsel, runs afoul of the
presumption of innocence, and demeans both the defendant and the
proceedings. See Allen, slip op. at 4, citing Staley, 67 Ill. 2d
at 36-37, 364 N.E.2d at 73. We could only not find plain error
by examination of the Boose factors after the hearing and a
determination that the restraints were necessary. If the hearing
to determine whether the restraints were necessary never took
place, we cannot not find plain error.
Because the restraints are presumptively impermissible, we
may only logically begin with the premise that the restraints are
unnecessary. I must conclude, as did the Allen court, that if
the restraints are unnecessary, their presence hinders the
defendant’s ability to assist his counsel, runs afoul of the
22 presumption of innocence, and demeans both the defendant and the
proceedings. However, the only way to determine whether the
restraint was unnecessary or not is to have the court’s
assessment of the Boose factors on the record. It necessarily
follows that in the absence of that assessment, plain error must
attach. Otherwise, the error--unnecessary restraint since there
has been no determination of necessity--would go uncorrected in
every case.
While this reading may appear at first blush to be in
conflict with the holding in Allen, I believe it is fully
consistent with the supreme court’s analysis. While the Allen
court held that the trial court’s failure to conduct a Boose
hearing -- standing alone -- does not amount to plain error
unless the defendant can show that his restraint caused an unfair
trial, application of the presumptions found in Herron and Staley
and confirmed in Allen show that the failure to conduct the
hearing necessarily results in the "unnecessary restraint" that
does constitute "plain error." I do not believe that the supreme
court meant Allen to be interpreted as holding that shackling,
absent a Boose hearing, never constitutes plain error. We are
therefore left to determine for ourselves what does constitute
plain error in these cases based on both the language and the
spirit of the supreme court’s opinions. I have attempted to do
so faithfully here and conclude that the trial court’s failure to
23 conduct a Boose hearing resulted in a presumption of the
unnecessary restraint that the supreme court has found to be
plain error. Accordingly, I would reverse the judgment of the
circuit court of Peoria County and remand for further