                                                                           FILED 

                                                                         JULY 7, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )        No. 33007-9-III
                      Respondent,              )
                                               )
       v.                                      )
                                               )
TOMMY JOE MONTENGUISE,                         )        UNPUBLISHED OPINION
                                               )
                      Appellant.               )


       KORSMO, J. -    Tommy Montenguise challenges his felony conviction for violation

of a no-contact order, arguing that the trial court erred in making him wear a leg brace for

security reasons without making proper findings. We agree with his argument, but

conclude that the error was harmless because there is no evidence that the jury ever saw

the restraint. The conviction is affirmed.

                                             FACTS

       Mr. Montenguise was charged in the Thurston County Superior Court after his

community corrections supervisor discovered he was living with his former girlfriend

despite the fact that a no-contact order prevented them from being together. The matter
                                                                                                            ,i
ultimately proceeded to jury trial.




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No. 33007-9-II1
State v. Montenguise


       The prosecutor asked that the corrections department be allowed to put a leg brace

on Mr. Montenguise during the course of the trial, reasoning that the corrections

department was understaffed and the charge was a domestic violence offense. The court

granted the request, explaining the following:

      The potential for the jury to observe the brace is limited; the brace is
      covered by his pant completely and covered by his sock; he is sitting on the
      far side of counsel from the jury box; and any restrictions on his gait can be
      mitigated by excusing the jury; if Mr. Montenguise is going to take the
      stand; this is a domestic violence case; there is the potential for security
      issues when we have a protected party in the courtroom ...

Report of Proceedings (RP) at 36.

      The court went on to say:

      there hasn't been-I want to make this clear-there has been no showing
      that Mr. Montenguise personally has exhibited any violence or
      disruptiveness. His appearance before the Court this morning has been
      exemplary, but, nevertheless, it is clear that corrections is thinly staffed,
      and we have no quick ability to staff many corrections officers within the
      courtroom to prevent any potential issues.

              So I don't want to belabor this, but I'm finding that the use of the
      restraint is the least restrictive ability to assure safety in the courtroom,
      given the size of the courtroom we have and given the ability to mitigate
      the potential consequences of notifYing the jury that it's being used.

RP at 36-37.

      The jury convicted Mr. Montenguise as charged. He then timely appealed from a

standard range sentence.




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No. 33007-9-III
State v. Montenguise


                                        ANALYSIS

       The sole issue presented by this appeal concerns the propriety of the court's

restraint ruling. I Although the court chose the least restrictive means to restrain Mr.

Montenguise, its justification for restraining him is not supported in the record or the case

law. Nonetheless, the record establishes that the error was harmless.

       A defendant in a criminal case is entitled to appear at trial free from all bonds or

shackles except in extraordinary circumstances. State v. Finch, 137 Wn.2d 792, 842, 975

P.2d 967 (1999), cert. denied, 528 U.S. 922 (1999). The purpose of this rule is to ensure

a fair and impartial trial under the Sixth and Fourteenth Amendments of the United States

Constitution and article I, sections 3 and 22 of the Washington Constitution. Id. at 843

(explaining that shackling or handcuffing impinges upon the right to a fair trial because it

violates the right to a presumption of innocence); see Illinois v. Allen, 397 U.S. 337,344,

90 S. Ct. 1057,25 L. Ed. 2d 353 (1970) (shackling offends the dignity of the judicial

process); State v. Damon, 144 Wn.2d 686,691,25 P.3d 418 (2001) (explaining that the

jury may perceive that the accused is dangerous, and "one not to be trusted").




       1 In his pro se Statement of Personal Grounds, Mr. Montenguise makes two
arguments that have no factual support in the record. Accordingly, we are in no position
to review them. RAP 10.10.

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No. 33007-9-III
State v. Montenguise


       This right is not absolute. Finch, 137 Wn.2d at 846. Restraints may be ordered

for three purposes: "to prevent injury to those in the courtroom, to prevent disorderly

conduct at trial, or to prevent an escape." ld. at 846. Additionally, the court's decision to

use restraints may only be justified if based upon "specific facts relating to the

individual" that are "founded upon a factual basis set forth in the record." ld. at 846; see

State v. Hartzog, 96 Wn.2d 383, 399-400,635 P.2d 694 (1981) ("a broad general policy

of imposing physical restraints upon prison inmates charged with new offenses because

they may be 'potentially dangerous' is a failure to exercise discretion").

       In Hartzog, the Washington Supreme Court set forth several factors that a trial

court could consider in deciding whether to use physical restraints:

       [T]he seriousness of the present charge against the defendant; defendant's
       temperament and character; his age and physical attributes; his past record;
       past escapes or attempted escapes, and evidence of a present plan to escape;
       threats to harm others or cause a disturbance; self-destructive tendencies;
       the risk of mob violence or of attempted revenge by others; the possibility
       of rescue by other offenders still at large; the size and mood of the
       audience; the nature and physical security of the courtroom; and the
       adequacy and availability of alternative remedies.

96 Wn.2d at 400 (quoting State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353 (1976)).

      Finch discussed how these factors should be applied, explaining that a trial court

should only consider the factors that indicate a manifest need for security measures. 137

Wn.2d at 849. Even "the existence of one or more factors does not necessarily mean that

a defendant should be restrained." ld at 850. The court emphasized that the need for


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No. 33007-9-III
State v. Montenguise


security must be compelling and that the trial court must base its decision on an

"imminent risk of escape, that the defendant intends to injure someone in the courtroom,

or that the defendant cannot behave in an orderly manner while in the courtroom." Id.

(emphasis added). Finally, physical restraints should only be used as a "last resort" and

the court must consider less restrictive alternatives before imposing them. Id. (citing

Allen, 397 U.S. at 344).

       On this record, we do not believe the facts supported the court's determination that

restraints were justified. There was no indication that Mr. Montenguise was an escape

risk or that he was not behaving properly in the courtroom. There also was no showing

that he intended to injure anyone. Indeed, the court's observation was that he was not

being disruptive or violent. Instead, the noted concerns were that the protected person

would be in the courtroom, this was a domestic violence case, Mr. Montenguise had a

history of not obeying court orders, and security was stretched thin.

       The first three concerns, which are the only ones that appear to implicate Finch

factors, do not support the use of restraints. 2 Although the protected person would be

present and it was a domestic case, there was no indication that the relationship involved

physical violence or that the defendant was likely to attack the victim. The two had been



       2 The fact that corrections staff is stretched thin is not a compelling reason to
impose restraints, but it is a factor in identifying the amount of restraint necessary when
the defendant is a demonstrated security risk.

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No. 33007-9-111
State v. Montenguise


living together and were turned in by an informant. The fact that the offense qualified as

a "domestic violence" charge did not itself mean that there was a risk of violence as that

concept is understood in the courthouse security context. All of the prior domestic

violence convictions were for violating a no-contact order rather than instances of

physical abuse.

       The court also used those same convictions to express concern that Mr.

Montenguise did not obey court orders. Although that is a reasonable inference from his

criminal record, that same record does not show any conviction that indicates a flight risk

or that his in-court behavior would not be exemplary.3 More than a generalized refusal to

obey court orders is necessary to establish that a security risk exists. A history of flight

or repeated failures to appear is necessary, in the absence of some indication of current

plans to escape, to meet the compelling security risk demanded by Finch. That is not the

case here.

       Accordingly, we conclude that the use of physical restraint was not justified in this

case. However, this type of error can be harmless error. State v. Damon, 144 Wn.2d 686,

693, 25 P.3d 418 (2001). The State must show that "any reasonable jury would have

reached the same result in the absence of the error." State v. Gu/oy, 104 Wn.2d 412, 425,



      3 The record also indicates Mr. Montenguise was in bench warrant status for two
months in this case, although there is no indication that this involved flight rather than
miscommunication.

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No. 33007-9-111
State v. Montenguise


705 P.2d 1182 (1985).4 Washington courts have routinely found that, in situations where

the shackles were not visible to the jury, the error was harmless. State v. Hutchinson, 135

Wn.2d 863,888,959 P.2d 1061 (1998); State v. Monschke, 133 Wn. App. 313, 336,135

P.3d 966 (2006), review denied, 159 Wn.2d 1010 (2007); State v. Jennings, 111 Wn.

App. 54,61,44 P.3d 1 (2002), review denied, 148 Wn.2d 1001 (2003).

       That is the case here. The trial court described the restraints and indicated that the

defendant's clothing and seating location prevented the jury from seeing the leg brace.

The court also indicated the steps it would take to ensure that the defendant was not

moved in the presence of the jury. The trial record does not indicate that any juror ever

saw the restraints. At no time did counsel argue that the jury saw something it should not

have seen.

       Accordingly, the error was harmless beyond a reasonable doubt. The restraints

went unseen and did not influence the outcome of the case.

       Affirmed.




       4 The Supreme Court in State v. Hutchinson noted that it is the defendant's burden
to show that the shackling had a substantial or injurious effect or influence on the jury's
verdict. State v. Hutchinson, 135 Wn.2d 863,888,959 P.2d 1061 (1998); see also State
v. Jennings explaining that case law is not clear regarding whether shackling in the
courtroom creates a presumption of prejudice that the State must overcome or whether
the defendant must demonstrate that the shackling was prejudicial. State v. Jennings, 111
Wn. App. 54,61,44 P.3d 1 (2002).



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No. 33007-9-111
State v. Montenguise


      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




      Lawrence-Berrey, J.




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