                         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

                     A. Leg Shackles and Handcuffs

     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.

                       B. Aggravated Robbery

     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.

                          C. Home Invasion

     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


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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

proceedings.




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