                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Harding, 2012 IL App (2d) 101011




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JACK D. HARDING, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-1011


Filed                      February 21, 2012


Held                       Defendant’s conviction for domestic battery was affirmed,
(Note: This syllabus       notwithstanding his contention that it was plain error to have a bench trial
constitutes no part of     while he was shackled and in prison attire without holding a hearing
the opinion of the court   under Boose, since the error was invited when the trial court agreed to the
but has been prepared      request of defendant’s counsel to have one or both of defendant’s hands
by the Reporter of         unshackled and plain-error review was precluded.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lee County, No. 10-CF-123; the Hon.
Review                     Ronald M. Jacobson, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Carol L. Anfinson, of Aurora, for appellant.
Appeal
                           Henry S. Dixon, State’s Attorney, of Dixon (Lawrence M. Bauer and
                           Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Bowman and Hutchinson concurred in the judgment and opinion.




                                             OPINION

¶1           Defendant, Jack D. Harding, appeals from his conviction of domestic battery (720 ILCS
        5/12-3.2(a)(1) (West 2008)). He contends that it was plain error for the court to hold a bench
        trial while he appeared shackled and in prison attire, without having held a hearing under
        People v. Boose, 66 Ill. 2d 261, 265 (1977). The State contends that the error was invited
        when defense counsel sought only to have one or both hands unshackled and the court
        agreed. In the alternative, the State contends that the evidence was not closely balanced under
        the first prong of the plain-error test. We determine that the error was invited, foreclosing
        plain-error review. Accordingly, we affirm.

¶2                                      I. BACKGROUND
¶3          On May 19, 2010, defendant was charged with two counts of domestic battery. Count I
        alleged that he made physical contact of an insulting or provoking nature with his wife,
        Karen Harding. Count II alleged that he caused her bodily harm. Bail was initially set at
        $5,000, but it was lowered at a later hearing, with the condition that defendant stay away
        from his wife and wear a monitoring bracelet. Defendant never posted bail.
¶4          On August 3, 2010, a bench trial was held. Defendant appeared, wearing prison attire and
        with his legs and hands shackled. Before trial, defendant’s counsel told the court, “I am
        requesting the Defendant, in order to participate meaningfully in the trial, be allowed to have
        his hand shackles removed. He can keep his feet shackles on and that I be permitted to hand
        him this pen.” The court asked the bailiff for an opinion on the matter, and he said that he
        had discussed the matter with counsel and would not have a problem if one hand were freed.
        The court then agreed and allowed one hand to be freed. There was no objection to freeing
        only one hand or to the leg shackles or prison attire. At trial, defendant was identified by
        several witnesses as the person wearing “black and white stripes” or “the jumpsuit.”
¶5          Defendant’s wife testified that, on May 14, 2010, she went with defendant to a bar in

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       Dixon, Illinois, where she drank beer and shots of tequila. She did not remember leaving the
       bar, but remembered falling on her knees and waking up on her back in a parking lot.
¶6          Nicholas Von Schrott, a paramedic, testified that he was at the bar that night and
       witnessed an altercation in the parking lot. He stated that he had an unobstructed view of
       defendant shouting at his wife for about 10 seconds, and then he saw defendant punch his
       wife in the face with a closed fist, causing her to fall to the ground on her back. Von Schrott
       then stepped in front of defendant, and other bystanders assisted him in moving defendant
       away from his wife. Von Schrott next attended to defendant’s wife, who he said was
       moaning and still lying on her back.
¶7          In a May 15, 2009, statement to police, Von Schrott said that, after defendant punched
       his wife, causing her to fall to the ground, defendant jumped on top of her and punched her
       again on the back of the head. At trial, Von Schrott said that his statement to police would
       be the most accurate, because his testimony at trial was based on his recollection after many
       months had passed. Von Schrott also could not recall whose vehicle he arrived in, how many
       bars he went to, whom he drank with, or whom he rode home with. Von Schrott admitted
       that he had been drinking that evening, but he also stated that he did not drink to the point
       of intoxication and that he would have been comfortable driving.
¶8          Scott Douglas Romine, a paramedic who was with Von Schrott at the bar, testified that
       he arrived after the altercation between defendant and his wife and saw Von Schrott telling
       defendant to get back, while defendant tried to push through a crowd of people toward his
       wife. Romine described defendant’s demeanor as confrontational and aggressive.
¶9          Officer Chris Plancho of the Dixon police department testified that he responded to a call
       about an altercation in a parking lot and found defendant’s wife on the ground on her
       stomach. She had dirt on her shirt, arms, and face and was crying and smelled of alcohol.
       Plancho testified that he gave defendant’s wife a ride home and observed that she was
       heavily intoxicated and staggering. Plancho did not observe any red marks on her or any
       bruising or injuries. Another officer arrested defendant, who denied that he struck his wife.
¶ 10        After the close of the State’s case, the court granted defendant’s motion for a finding in
       his favor on count I. After trial, the court found him guilty of count II. In doing so, the court
       stated that the case “rises or falls on Mr. Von Schrott’s testimony,” as he was the only person
       who testified that defendant punched his wife. The court specifically expressed concern that
       there were discrepancies in Von Schrott’s testimony, and it said that there were “serious
       concerns” about the accuracy of his memories. Ultimately, however, the court decided that
       it believed Von Schrott’s testimony that defendant punched his wife. Accordingly, the court
       found defendant guilty. Defendant was sentenced to four years’ incarceration. He did not
       make any posttrial motions, and he appeals.

¶ 11                                      II. ANALYSIS
¶ 12       Defendant contends that it was plain error for the court to hear the trial while he appeared
       in prison attire and shackles, which he argues denied him his right to a fair trial. Defendant
       concedes that he failed to object at trial, thus limiting review of the issue to plain error. At
       oral argument defendant also conceded that, to the extent leg shackles are at issue, the error

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       was invited and is not subject to plain-error review.
¶ 13       “In People v. Boose, 66 Ill. 2d 261, 265 (1977), the court held that the shackling of an
       accused should be avoided if possible because shackling: (1) tends to prejudice the jury
       against the accused; (2) restricts the accused’s ability to assist his counsel during trial; and
       (3) offends the dignity of the judicial process.” In re Jonathan C.B., 2011 IL 107750, ¶ 67.
       “Therefore, Boose held that an accused should not be kept in restraints while in court and in
       the presence of the jury unless there is a manifest need for such restraints.” Id. (citing Boose,
       66 Ill. 2d at 265-66). “The Boose court set forth 13 factors to be considered in deciding
       whether there is a manifest need to restrain a defendant at trial: (1) the seriousness of the
       offense; (2) the defendant’s temperament and character; (3) the defendant’s age and physical
       characteristics; (4) the defendant’s past record; (5) any past escapes or attempted escapes; (6)
       evidence of a present plan of escape by the defendant; (7) any threats by the defendant to
       harm others or create a disturbance; (8) evidence of self-destructive tendencies; (9) the risk
       of mob violence or of attempted revenge by others; (10) the possibility of rescue attempts by
       any co-offenders at large; (11) the size and mood of the audience; (12) the nature and
       physical security of the courtroom; and (13) the availability of alternative remedies.” People
       v. Clark, 406 Ill. App. 3d 622, 635 (2010) (citing Boose, 66 Ill. 2d at 266-67). The principles
       from Boose have recently been codified in Illinois Supreme Court Rule 430 (eff. July 1,
       2010), which mandates in part:
                “An accused shall not be placed in restraint of any form unless there is a manifest
           need for restraint to protect the security of the court, the proceedings, or to prevent
           escape. Persons charged with a criminal offense are presumed innocent until otherwise
           proven guilty and are entitled to participate in their defense as free persons before the
           jury or bench. Any deviation from this right shall be based on evidence specifically
           considered by the trial court on a case-by-case basis.”
¶ 14       The record should clearly disclose the reason underlying the trial court’s decision for the
       shackling and show that the defendant’s attorney was given an opportunity to oppose this
       decision. Boose, 66 Ill. 2d at 266-67. These principles also apply to bench trials, as shackling
       restricts the ability of a defendant to cooperate with his attorney and to assist in his defense
       and jeopardizes the presumption of innocence. In re Staley, 67 Ill. 2d 33, 37 (1977). The
       appearance in prison attire has generally been addressed under the same reasoning as in
       Boose, often in conjunction with circumstances in which the defendant was also shackled.
       See id.; People v. Tedrick, 377 Ill. App. 3d 926, 928 (2007).
¶ 15       Here, the court erred when it failed to place on the record its reasons for the shackling
       and the appearance in prison attire. Indeed, it appears that the court failed to consider the
       factors from Boose at all. However, defendant did not object at trial. He now contends that
       the matter was plain error, because the evidence was closely balanced and the error alone
       threatened to tip the scales of justice against him, while the State argues that it was invited
       error, which is not subject to plain-error analysis.
¶ 16       A defendant’s failure to object at trial and to raise an issue in a posttrial motion operates
       as a forfeiture of the right to raise the issue as a ground for reversal on review. People v.
       Harvey, 211 Ill. 2d 368, 385 (2004). The plain-error rule is a narrow and limited exception


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       and is applied to ameliorate the harshness of strict application of the forfeiture rule. Id. Under
       the plain-error rule, a reviewing court may consider a forfeited claim when: “(1) a clear or
       obvious error occurred and the evidence is so closely balanced that the error alone threatened
       to tip the scales of justice against the defendant, regardless of the seriousness of the error, or
       (2) a clear or obvious error occurred and that error is so serious that it affected the fairness
       of the defendant’s trial and challenged the integrity of the judicial process, regardless of the
       closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). “In plain-error
       review, the burden of persuasion rests with the defendant.” People v. Thompson, 238 Ill. 2d
       598, 613 (2010).
¶ 17        However, plain-error review is forfeited when the defendant invites the error. “[A]
       defendant’s invitation or agreement to the procedure later challenged on appeal ‘goes beyond
       mere waiver.’ ” Harvey, 211 Ill. 2d at 385 (quoting People v. Villarreal, 198 Ill. 2d 209, 227
       (2001)). The issue is sometimes referred to as one of estoppel. Id. That is, under the doctrine
       of invited error, a defendant may not request to proceed in one manner and later contend on
       appeal that the course of action was in error. Id. To allow a defendant to use the exact ruling
       or action procured in the trial court as a vehicle for reversal on appeal would offend notions
       of fair play and encourage defendants to become duplicitous. Id. It would also deprive the
       State of the opportunity to cure the alleged defect. People v. Bush, 214 Ill. 2d 318, 332
       (2005). Thus, these principles also apply to preclude plain-error analysis. Where the
       defendant invited the error, our supreme court has declined to address any related plain-error
       claim. See, e.g., People v. Patrick, 233 Ill. 2d 62, 76 (2009).
¶ 18        The invited-error rule was applied in part by the Third District to a case involving
       shackling in People v. Woods, 373 Ill. App. 3d 171 (2007). There, on two occasions, counsel
       for the defendant asked that handcuffs be removed so that the defendant could take notes
       during trial. At the time of the first request, defense counsel suggested that doing so was
       permissible because the defendant’s legs would remain shackled, and the court allowed the
       handcuffs to be removed. On the second occasion, counsel asked that the defendant have one
       or both handcuffs removed and the court allowed one. The Third District held that any error
       in regard to the handcuffs was invited, but the court then addressed whether it was plain error
       for the court to fail to remove the leg shackles.
¶ 19        We agree with the State that the error was invited. Although Woods considered only a
       specific part of the issue of restraints to be invited error, the invited-error rule contemplates
       that a defendant may not request to proceed in one manner and later contend on appeal that
       the course of action was in error. The issue of appearance in shackles and prison attire is
       generally analyzed as a whole, as the overriding concern is a fair trial based on how the
       defendant appears and his or her ability to assist in the defense. Thus, we decline to part and
       parcel out individual items of restraint or clothing as the court did in Woods.
¶ 20        Here, defendant specifically concedes that the issue as it pertains to the leg shackles was
       invited error, as trial counsel specifically stated that he could keep those on. Trial counsel
       then asked that the hand shackles be removed so that defendant could “participate
       meaningfully in the trial.” Counsel at some point discussed the matter with the bailiff, who
       stated no objection to proceeding with one of defendant’s hands freed. The court agreed to
       allow one hand to be freed, and the record is silent as to whether the shackle on the other

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       hand was physically attached to anything. Likewise, the record does not include the
       conversation between counsel and the bailiff. In any event, what is clear is that counsel
       specifically asked that defendant be freed in a way that would allow him to participate
       meaningfully in the trial, by holding a pen, and he was granted that request. By not asking
       for more, such as the removal of all shackles and prison attire, and in light of the deficiencies
       in the record, we view counsel’s request as specifically limited to a request to remove enough
       items so that defendant could meaningfully participate in the trial.
¶ 21        One of the key reasons for a Boose hearing is to allow counsel to oppose the defendant’s
       appearance in restraints and prison garb. By specifically raising the issue in a limited form,
       counsel invited the court to address the matter in that same limited form. Here, counsel made
       a limited request, that request was granted without further objection, and defendant cannot
       now contend that it was error for the court to grant that request without going further.
¶ 22        Because the error was invited, we need not address plain error.1 However, we note that
       the issue of restraints can be troubling, especially in light of an incomplete record, as recently
       seen in In re Jonathan C.B., a case involving shackling and plain error. While In re Jonathan
       C.B. is not applicable to our decision here, it illustrates the difficulties an appellate court
       faces when a defendant appears in shackles without a hearing on the issue. Thus, when a trial
       court is presented with a defendant who appears in prison attire and restraints, even for a
       bench trial, and even when counsel agrees to the removal of only a portion of the restraints,
       the best course of action is to hold a Boose hearing so that the reasons for the defendant’s
       appearance and the extent of any agreement can be considered by the court and placed on the
       record.

¶ 23                                  III. CONCLUSION
¶ 24      Trial counsel invited the error raised on appeal, precluding plain-error review.
       Accordingly, the judgment of the circuit court of Lee County is affirmed.

¶ 25       Affirmed.




               1
                Although we need not address plain error, we observe that there have been recent
       developments in how the first prong of the plain-error test is addressed in regard to a showing of
       prejudice. The State, citing to the recent case of People v. White, 2011 IL 109689, contends that the
       defendant must show specific prejudice. But White did not overrule the basic rule from People v.
       Herron, 215 Ill. 2d 167, 186-87 (2005), that, for the first prong, the defendant need show only that
       the evidence was so close that the error “severely threatened” to tip the scales of justice; that is,
       given the closeness of the evidence, the error might have produced the outcome. Thus, the principles
       from Herron still apply to the first prong of plain-error review. See People v. Vesey, 2011 IL App
       (3d) 090570, ¶ 19 (discussing that White did not overrule Herron). Nor did the court’s recent
       decision in People v. Adams, 2012 IL 111168, overrule Herron.

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