                              No. 3-07-0255

_________________________________________________________________
Filed January 5, 2009
                              IN THE

                      APPELLATE COURT OF ILLINOIS

                             THIRD DISTRICT

                               A.D., 2009

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 12th Judicial Circuit,
                                ) Will County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 01-CF-902
                                )
ANTHONY JOHNSON,                ) Honorable
                                ) Gerald Kinney,
     Defendant-Appellant.       ) Judge, Presiding.
_________________________________________________________________

       JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________


     Following   a    jury   trial,    defendant   Anthony   Johnson   was

convicted of attempt robbery and aggravated battery (720 ILCS 5/8-

4(a), 1801(a), 12-4(b)(8) (West 2000)).       The trial court sentenced

him to eight years in prison.         He appealed, and we reversed and

remanded for a retrospective hearing to determine whether it was

necessary to require defendant to wear an electronic security belt

as a restraining device at trial.      People v. Johnson, 356 Ill. App.

3d 208 (2005).       On remand, the trial court concluded that the

security belt was necessary.          Defendant appeals that decision,

arguing that it was an abuse of discretion.        We agree and reverse

and remand for a new trial.

     Defendant attempted to rob a female employee at a Subway

restaurant by threatening to shoot her if she refused to give him
money from the store’s cash register.             He was arrested and charged

with attempt robbery and aggravated battery.

       Prior to defendant’s testimony at trial, defense counsel asked

that defendant’s electronic security belt be removed.                  The trial

court denied the request, stating that defendant needed to remain

in the belt because he had prior convictions of "aggressive types

of crimes."

       On direct appeal, defendant argued that the judge violated his

right to due process by requiring him to wear the stun belt during

trial where there was no showing of a manifest need to restrain

him.   We agreed and remanded the cause to allow the trial court to

conduct a retrospective hearing to determine whether the use of the

security device was necessary using the 13 factors enumerated in

People v. Boose, 66 Ill. 2d 261 (1977).             Johnson, 356 Ill. App. 3d

at 212.

       At the hearing on remand, the State argued that restraining

defendant    was   justified    based       on   defendant’s   prior    criminal

history, which included convictions for robbery, theft, aggravated

robbery, and burglary.         The State also argued that the belt was
necessary to restrain defendant based on the seriousness of the

charges in    this   case   and   defendant’s       physical   stature.      The

prosecutor described defendant as "fit" at the time of trial.                 He

estimated that defendant weighed 195 pounds and stood 5' 7" tall.

       In response, defense counsel claimed that the decision to use

the electronic security belt had been unilaterally made by the Will

County Sheriff’s office.       Counsel further argued that the belt was


                                        2
unjustified because defendant had not been violent or disruptive

during the proceedings, none of his past offenses indicated that he

was an escape risk, and he was not involved with a co-defendant at

large who might have tried to rescue him.          Both parties agreed that

there were no spectators in the courtroom during the trial.

     The trial judge found that defendant’s Class 3 felony charges

were "very serious charges" and that his criminal history was

"significant."      The judge also recalled that the complaining

witness   was   a   "very   young,   very   tiny    Asian    girl"   who   was

"petrified" of defendant during her testimony.              The trial court

then concluded that the electronic security belt did not create

prejudice to the jury and was properly used to restrain defendant

at trial.

                                ANALYSIS

     On appeal, defendant maintains that the trial court abused its

discretion in finding that it was necessary to restrain defendant

using an electronic security belt.       Defendant argues that, in this

case, there was no showing of a "manifest need" for the restraint

at trial.
     Shackling of the accused should be avoided if possible because

(1) it tends to prejudice the jury against the accused, (2) it

restricts his ability to assist his counsel during trial, and (3)

it offends the dignity of the judicial process.             People v. Boose,

66 Ill. 2d 261 (1977).        An accused should never be placed in

restraints in the presence of a jury "unless there is a showing of

a manifest need for such restraints." People v. Martinez, 347 Ill.


                                     3
App. 3d 1001 (2004).

     A defendant may be shackled when there is a 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 trial.    Boose, 66 Ill. 2d at 266.       The decision to

shackle a defendant is left to the discretion of the trial court,

and the court may select the physical restraints most suitable in

light of all the circumstances.        People v. Allen, 222 Ill. 2d 340

(2006).   An electronic safety belt is no less a restraint than

shackles or handcuffs.     Allen, 222 Ill. 2d at 346-47.          Thus, the

use of electronic safety belts in the courts of this state is

warranted "only where there has been a showing of manifest need for

the restraint."   Allen, 222 Ill. 2d at 347.

     The trial judge must state for the record his reasons for

allowing the   defendant   to   remain    shackled   and   must   give   the

defendant’s attorney an opportunity to present reasons why the

defendant should not be shackled.       People v. Buss, 187 Ill. 2d 144

(1999).   The possibility of prejudicing a jury is not the only

reason why courts should not allow shackling of an accused absent
the strong necessity for doing so.       Even where there is no jury, an

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 accused and the

judicial proceeding.   In re Staley, 67 Ill. 2d 33 (1977).

     Factors the trial court should consider in making a "manifest

need" determination include (1) the seriousness of the present


                                   4
charge against the defendant, (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 by the defendant, (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 on the part of the defendant, (9) the risk of mob

violence or of attempted revenge by others, (10) the possibility of

rescue attempts by any co-offenders still at large, (11) the size

and mood of the audience at trial, (12) the nature and physical

security of the courtroom, and (13) the adequacy and availability

of alternative remedies.        Boose, 66 Ill. 2d at 266-67.

     Here,    defendant   was    charged    with   aggravated   battery   and

attempt robbery.     While any felony is a serious crime, there was

nothing in the nature of the charges against this defendant that

indicated that his temperament or character made him more likely to

attempt escape or disrupt the proceedings.             Defendant’s criminal

history included multiple offenses for theft and robbery but no

offenses that would indicate he posed any more of an escape risk
than any felony defendant with similar criminal histories. The PSI

states that defendant was 35 years old, stood 5'5" tall, and

weighed approximately 180 pounds at trial.             Without more, these

physical characteristics do not appear oppressive or alarming, even

assuming defendant was physically fit.             Moreover, nothing in the

record indicates that defendant planned an escape or was disruptive

during the proceedings.     In addition, defendant did not commit the


                                      5
crime with the aid of a co-defendant who might now come to his

rescue.   There are no co-defendants at large.            Further, the record

does not reveal any self-destructive or violent tendencies on the

part of the defendant.        The parties agreed that there were no

spectators in the gallery.        Thus, the size and mood of the audience

is not a factor to consider.         Last, alternatives were available.

Defense counsel stated that prior to the use of the electronic

belts, the courtroom employed deputies to secure the courtroom.

Nothing suggests those deputies could no longer perform that duty.

Given these facts, we cannot say that the trial court’s conclusion

was proper.

     The manifest need standard set forth in Boose is designed to

allow the use of restraints only in exceptional cases.               Boose, 66

Ill. 2d at 265.    There must be some connection between the factors

enumerated by the trial court and the belief that the accused may

try to escape or that he poses a threat to the safety of the

courtroom.      See Boose, 66 Ill. 2d at 266, citing Kennedy v.

Cardwell, 487 F. 2d 101 (6th Cir. 1970).            Without that connection,

Boose essentially becomes meaningless.
     In this case, the State argues that factors such as the

violent nature of the charged offenses and                 defendant’s prior

convictions support the trial court’s ruling.                 Those factors,

however, were the same factors the trial court relied on when it

initially     determined   that    the       electronic   security   belt   was

necessary.    In defendant’s first appeal, this court held that the

consideration of those factors alone did not justify the use of


                                         6
restraints.   See Johnson, 356 Ill. App. 3d at 211, citing Boose, 66

Ill. 2d at 268.     Nothing has changed.      No further evidence was

presented to the trial court.       We continue to find no meaningful

connection between the arguments offered and the manifest need to

restrain defendant at trial.

     Thus, we find the trial court’s ruling to be an abuse of

discretion.   Forcing defendant to wear an electronic security belt

without demonstrating a manifest need for the restraint violated

defendant’s right to a fair trial.        Therefore, defendant must be

granted a new trial.

                                 CONCLUSION

     The judgment of the circuit court of Will County is reversed

and the cause is remanded for a new trial.

     Reversed and remanded.

     MCDADE, J., concurring.

     JUSTICE HOLDRIDGE, dissenting:

     I would remand for another hearing because I am still not

convinced   that   the   trial   judge   applied   the   Boose   analysis.

Although the Boose factors were argued by counsel on remand, the
judge said he had "always taken the position" that Boose did not

apply to electronic security belts and that the appellate court had

"ignore[d] the obvious difference between visible shackles and a

concealed security device."       The judge expressed this view several

times, suggesting that appellate judges would agree if they had any

experience in the real world of criminal trials.           The following

remarks are illustrative:


                                     7
          "The   judges, who have no history in the court

     system, who have addressed this under People versus

     Martinez, want to look at this as an issue of well, it

     really in their opinion        offends the dignity of the

     judicial process, which they have never been involved in.

     I find it very interesting that they have never tried --

     picked a jury, tried a case, tried an Aggravated Battery,

     seen a victim shake on the witness stand, cry on the

     witness stand, and yet they are going to tell the trial

     court what and what doesn't offend the dignity of the

     trial process.

          So all that aside, I don't think -- I did everything

     I could not to prejudice the jury.                I have not heard

     anything    that    would   lead       me   to   believe   that   the

     defendant's abilities to assist his counsel during trial

     was in any way impaired or restricted by the presence of

     the device, and I take offense at any reference that the

     use of the device offends the dignity of the judicial

     process for the reasons I stated previously."
It appears that instead of following our instructions, the judge

used the remand hearing as a forum to express his disagreement with

the instructions.       Although he mentioned two factors relevant to

Boose (seriousness of the charge and criminal history), he had

already done that when the case was before us on direct appeal.

     I have been a trial judge.         I have picked a jury.      I have seen

crime victims testify.       This experience actually accounts for my


                                        8
belief      that    Boose    violations       should    be   remedied   through

retrospective hearings instead of outright reversal.                In People v.

Martinez, 347 Ill. App. 3d 1001 (2004), the evidence revealed that

the Will County sheriff had a policy of requiring all felony

defendants to wear an electronic security belt in the courtroom.

The trial judge deferred to this policy, stating that "he did not

want   to    disrupt   the   sheriff's       standard   operating   procedure."

Martinez, 347 Ill. App. 3d at 1003.              Such deferral was improper

because a trial judge must control his or her own courtroom

procedures.        See People v. Allen, 222 Ill. 2d 340 (2006).             The

purpose of a retrospective Boose hearing is to afford judges an

opportunity to fix this impropriety without undoing an entire

trial.

       The instant judge obviously disagrees with our application of

Boose to electronic security belts.             Nevertheless, as our Supreme

Court has held, Boose does apply.               See Allen, 222 Ill. 2d 340.

Since I do not believe the judge has yet followed the applicable

standard, I would remand once again for compliance.




                                         9
