State v. Steltz

313 P.3d 312, 259 Or. App. 212, 2013 WL 5819103, 2013 Ore. App. LEXIS 1322
Court of Appeals of Oregon·Decided October 30, 2013·No. 10C46694; A149320·Published·Cited by 12 cases

Opinion

HADLOCK, J.

Defendant appeals a judgment of conviction for three counts of first-degree sodomy (Counts 1, 4, and 5), ORS 163.405, one count of first-degree unlawful sexual penetration (Count 2), ORS 163.411, one count of first-degree sexual abuse (Count 3), ORS 163.427, and two counts of second-degree sexual abuse (Counts 6 and 7), ORS 163.425. He raises five assignments of error. We reject defendant’s first and second assignments of error without discussion. In his third assignment of error, defendant contends that, by requiring him to wear a stun belt, the trial court violated his right to be free from physical restraints during his trial. As explained below, we reject the arguments that defendant raises in conjunction with that assignment of error, which are not preserved for appeal. In his fourth and fifth assignments of error, defendant argues that the trial court erred when it failed to merge the convictions for Counts 6 and 7 into the convictions for Counts 4 and 5. As to those assignments of error, we agree with defendant and, therefore, remand with instructions.

Defendant was an inmate at Oregon State Penitentiary and Oregon State Correctional Institute when he was accused of sodomizing and sexually abusing two other inmates. At his trial, the court required defendant to wear a Remote Activated Custody Control Belt (stun belt). The court explained its reasoning as follows:

“THE COURT: * * * [A] s Counsel are aware, pursuant to the request of the sheriff’s office, I, yesterday, entered a formal order submitted by the sheriff’s department permitting the use of the [stun] belt on [defendant] in the courtroom. And [defense counsel], anything that you wanted to say about that for the record?
“[DEFENSE COUNSEL]: Yes, Your Honor. We do object to the use of the belt; however, when given the alternative of the shackles, since this is a jury trial, we will acquiesce to the belt.
«* * * * *
“THE COURT: And so I will just state for the record, and Counsel, I’m sure, are both aware of this, that my understanding from the sheriffs department was that [215] [defendant] had some behavior issues such that they were concerned about his ability to, essentially, control his behavior in a courtroom.
“The [stun] belt is not visible to the jury. He is *** dressed in civilian clothing, and so that’s a mechanism, to ensure that we don’t have any outbursts or disruptions that is not visible to the jury, and therefore nothing that is going to prejudice the jurors by having them draw any conclusions about [defendant] based on that. So on that basis the Court did allow it.”

On appeal, defendant contends that the trial court violated his right to be free from physical restraints during trial. Specifically, defendant argues that the trial court erroneously deferred to the sheriff’s office when determining whether defendant should be required to wear a stun belt. Defendant also contends that the court impermissibly failed to “make a record of why the stun belt was necessary.” Defendant asserts that the court’s erroneous requirement that he wear a stun belt prejudiced him at trial by influencing his decision not to testify. The state responds that, among other things, defendant’s arguments are unpre-served. We agree with the state.

Oregon has long recognized the “right of an accused to be free from physical restraint during a criminal trial.” State v. Wall, 252 Or App 435, 437, 287 P3d 1250 (2012), rev den, 353 Or 280 (2013). That right “has common-law and constitutional underpinnings.” Id. “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.” Id. Nevertheless, a trial court has discretion to order a defendant to wear shackles or a stun belt if there is evidence of an “immediate and serious risk of dangerous or disruptive behavior.” Id. at 439 (internal quotation marks omitted); see also id. at 442 (concluding that there is no difference between visible and nonvisible restraints “for purposes of the threshold showing that is required before restraints may be lawfully imposed”). In Wall, we emphasized two aspects of the trial court’s task in exercising that discretion. First, the trial court should make a record of the relevant information it has received and evaluated. Id. at 439. Second, [216] the court may not simply defer to others’ opinions of the risk that the defendant may pose; rather, the information before the court must provide it with a basis “to make an independent assessment of the risk.” Id. (citation omitted).

As noted, defendant argues on appeal that the trial court did not perform either of those tasks; that is, defendant contends that the court impermissibly deferred to the sheriffs risk assessment and failed to make a record of its reasons for requiring restraints. But the record does not indicate that defendant made either of those arguments to the trial court. As far as we can discern from the record, the restraint issue first arose when, on the day before trial, the trial court entered an order authorizing the use of a stun belt on defendant during trial. The next day, the court gave defendant an opportunity to comment on the record about that order. Defense counsel responded, “We do object to the use of the belt; however, when given the alternative of the shackles, since this is a jury trial, we will acquiesce to the belt.” That brief and general objection was not sufficient to preserve the arguments that defendant raises on appeal, as it did not alert the trial court either to the need to make findings or to defendant’s contention that the court imper-missibly was deferring to the sheriff. Moreover, the absence of more specific arguments prevented development of the record. That is, had defendant asserted below that the trial court could not defer to the sheriff and needed to explicitly detail its own reasons for requiring restraints, the trial court could have done so. For both of those reasons, defendant’s general objection did not adequately preserve his current arguments for appeal. See Peeples v. Lampert, 345 Or 209, 219-20, 191 P3d 637 (2008) (“preservation fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it”); State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000) (to preserve a claim of error for appeal, a party must “provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted”); see also Peeples, 345 Or at 221-23 (preservation principles apply even when the trial court is required to make particularized findings on the record).

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State v. Steltz, 313 P.3d 312, 259 Or. App. 212, 2013 WL 5819103, 2013 Ore. App. LEXIS 1322 (Or. Ct. App. 2013).

313 P.3d 312 (State v. Steltz) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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