dignity and self respect of a free man yet today even after fifty years precedent and probably more than that we're here again today arguing in other case where a defendant w shackled without there being any determination of the shackles are necessary korea's file a which is supposed to picture relief and alleged essential if there's a due process violation here and the as a result of that he essentially made two claims in the post conviction petition that are relevant to the issue that we're discussing today he first argued that the judge committed air by not holding a news hearing before essentially requiring him to be ankles each day of trial and during post nixon proceedings the court agreed that it was there the court however apparently was under the mistaken impression that corey couldn't show prejudice and was there was evidence that the now the reason that it matters this if you process violation in this case is again because of the closeness of the evidence there were arguably more witnesses in this case who testified the court did not have a gun than witnesses who and while there is conflicting testimony regarding whether or not he had the gun it is just that it's conflicting testimony it isn't what we got when i was prepared for this argument a few times i was thinking in terms of the possibility that there may have been sufficient evidence for corey's acquittal but for the shackling issue given the strength of the evidence here up a few different reasons whether whereas the judge concluded that the jury never solved shackles we don't know that they didn't know or we don't know that the jury was unaware of that chappell's there i would guess if it's a speed and make noise if corey moves a certain way the jury may have been able to see chuckles but more importantly in this case one of the chief allegations in the post conviction petition was jerk walked into the courtroom right i understand what the fact that it was his the facts that he was in continuous custody and defense counsel did assert that it was trial strategy not to object to the shackles there are to say that there's monumental flaws with that strategy i think is that it's about understatement what happened in this case in the hours after corey was arrested someone allegedly went into the home that he shared with his girlfriend had put a hole in the wall now we don't know who did that we don't know why they did it but the state seemed to infer that maybe somebody was looking for something maybe somebody went to the house to recover him go so for that reason defense counsel said during the post counsel didn't need the jury to know the court was shackled during trial to establish that three months earlier he couldn't and i guess the question is what's the prejudice if they know that he's spending custody since his arrest and would have been available to go and see because himself and if that's what happened what's the prejudice there the idea that someone shackled involves more than a connection to custodial status i  he pulled out a socket wrench he i never saw him with a handgun that day on gray who was with corey from the time of this confrontation with the lawson family until corey was arrested testified no i never saw him with a gun when he c that it looked like cory just to the magazine wiped it off and put it back in the ground but it would have to evaluate whether the evidence in this case was close we have to look at it almost from a local perspective what was all of the others that the jury would have h now do you want to tell us anything about a gun american change a story on very still said no there was no gun here they got the exact same thing with corey they brought that back in and dropped it on the table to make you think they found a guy corey said no it was a soccer grudge cory's girlfriend who he had children with he lived with her testified there's not a gun in my house i've never seen corey and maybe more importantly if you want to talk about unbiased evidence what is more clearer than the fact that at least five officers went into the residence of course shared with his girlfriend after court he was arrested house corey testified that he wanted to attempt to dispose of the cannabis because again you lived at that house with his girlfriend her children and he didn't want to hear the sounds of disposed of it or attempted to she was one of the officers who responded to the scene she was one of the officers usurps the residence during her trial testimony while she was discussing the purpose of the search they asked her were you satisfied with the search she said yes i was satisfied that search that strikes me as testimony that an officer who really believed that there was a gun in the home would not have given as i was reading through the transcripts i was surprised that she didn't say no i wasn't satisfied with that we didn't find the guy but that's not what she said she said yes i was absolutely satisfied with what the purpose of the search was there a testimony about what became of the socket where you know there was no testimony about that there was so one of the the concepts for the socket wrench was precious testified that hoary had been helping a friend with a car and when she went back to teleport achievement for him by the slawson family in the park that approximately fifteen other witnesses around at that time people were gathered around the los and residents you know heard this argument taking place none of those fifteen witnesses reported seeing a gun none of those fifteen w if this isn't a case if the closeness of the evidence doesn't help a reversal in this case i'm not sure what kind of case would be necessary to help work or solve in a reunion for a new trial the closeness of the evidence here simply cannot be who  getting back to the the air in this case the the case is seen uniform to say that not only was this a good process patients but there are multiple cases that say there's a process specific and uniformly negative thoughts in the minds of jurors shackling is an unmistakable indication the defendant needs to be separated from the community at large that is why shocked when issues of so significant that is why the courts had uniformly said you conviction the staley court talked about the defendant having the right to stand trial with the appearance dignity and self respect of a free man cory has never had that opportunity defendant is supposed to be able to walk into trial and be shrouded with knowing that they are innocent till proven guilty but they are being tried in front of an impartial fact finder next to an attorney that's  to advocate for their best interests in each day of trial hoary have that shroud that white that that's supposed to surround him and give him comfort that the justice system is going to work he had that yanked away from it we know that the judge prior to the juror walking into the room and seen corey and wrist and ankle shackles defense counsel had already the list of testimony from police girlfriend that he had been into this house the jury already knew that there was no need for defense counsel to further prejudice corey in the eyes of the jerk incredibly this corey in general by again removing this fundamental principle of american jurisprudence that every defendant is supposed to shackled during the trial or not to two things one the judge is the person that's in control of the work so he has an obligation to see that if the defendant is in that in the courtroom at any point prejudice does not befall the defendant but the going anywhere he could remain in the courtroom over the lunch hour defense counsel said the only reason i would like to question that jerk is to see integer or heard any of what we were discussing in court obviously there was some proceedings of some sort going on  court first off with the juror that came in she was a juror she was there for the whole trial therefore she saw defendant for most of the trial with no and cuffs on that so it's clear if any issues bruce abuse hearing is concerned with restraints before the jury during trial the defense counsel tries to mold these into one issue the jerk the rocher that comes in to retrieve her no pad this is not during trial this is after the jurors dismiss this was not before the jury as far as the trial court is concerned this has nothing to do with the blues hearing and would not have been brought up it could have been any defendant in custody at that point in that position it would have the same shackles on whether they were wearing ankle shackles or not whether they were a stun belt or not and that's first and foremost we have to keep these two which are separate and really the only way so the failure to conduct abuse hearing has nothing to do with this jerk comes back in on our own volition to the courtroom after the jury has been dismissed the boos hearing has to do with the ankle shackles during the during the trial the only way th defender supposed conviction petition can address this rotor coming back in would be in the infective assistance of counsel argument i would say that that argument is clearly procedurally defaulted on all of this was on the record as i said as as your honour's know the trial court made aware to defendant and stay and everyone else that this juror saw the defendant her brief moment in his full shackles before being transported out that was on the record so was defense counsel's decision not to question this jury further that was on the record for direct appeal that was not raised under appeal and it provided no reason why it was not raised on direct appeal that issues clearly could have also been raised on direct appeal and it's also procedurally defaulted as well the trial court dismissed this on the merits that was also proper we have to remember this is the third stage post conviction ition the standard of review is higher than usual it's not a no vote anymore there was testified to that fact as well there's clearly nothing in the record that shows any prejudice there's nothing in the record that shows definitive even commented in fact defense counsel stated defendant never even brought up this subject of these ankle shackles he didn't say all these are the powerful stun bell in martinez the defendant contemporaneously objected which of course we didn't have here but he was scared to wear this during trial of course but the finn is not going to be in the proper state of mind to help his own defense if he's worried about a son felt a sunbelt powerful enough apparently to make a definitive urinate and defecate on himself of course he's going to be scared these were ankle shackles these were not power these were electri or shocking ankle shackles or anything like that as far as the jury is concerned defendant is like every other minute there's nothing above the waist that says he has any shackles on at all so clearly he was not prejudiced in the supreme court in allen which i cited in my brief stint held that if a defendant doesn't object to the failure to conduct a close hearing it results in forfeiture if he was not prejudice he didn't object here he didn't even mention it to his defense counsel here and we we know that the jury didn't see these ankle shackles there simply was no prejudice more importantly it wasn't manifestly erroneous for the trial court to decide that there was no prejudice which is the standard of review that we were working with here case i didn't move to cite additional authority i just saw this morning i have the cite if you want it it distinguished martinez like this unlike martinez there was no contemporaneous objection to the barmouth of the defendant where stun belt during the trial been procedurally defaulted procedural default obviously applies in post conviction proceedings i have the cipher degree and of course i would not object to his counsel moving to reply to that at any point  so there was no error in deciding that there was no prejudice in this food failure to conduct a booze hearing issue the other the only other section of the argument is ineffective assistance of counsel or second one of the wrongs of ineffective assistance is prejudice as well we've already determined that there would have been no prejudice as far as the jury was concerned it was a normal trial the outcome of the proceedings clearly would not have been different the op different defense counsel seems to sort of posit this as a suspicious of the evidence and argument talking about the closeness of the evidence that really i mean i would submit and i'd submitted my briefs that the evidence was overwhelming the only impartial witness testified was a am not sure and i don't think it really applies to this present case as far as this was not a crucial point of this ineffective assistance of counsel argument or ankle shackles the regarding the clothes as i was the evidence that was part of the defense theory as well let me say that this was a close isn't that something that would be considered sure i mean and as your honour's are aware there's there were forty five minutes to hide a gun you can you would be a direct appeal issue is fish to the evidence kind of issue i've been i don't know why they didn't find a gun however that doesn't have anything to do with defended being found guilty beyond a reasonable doubt  jury was in the best position to evaluate all the witnesses and their credibility it weakens the state's case of course they didn't find the gun however there was a there were three there were multiple witnesses one of them an impartial law  testified defended indeed had this gun and from what distance to the service he observed it through a window in the house again this is sort of a red herring fishery of the evidence is sort of a red herring here correct in the forty five minutes of the standoff their gun was never found clearly the jury didn't place the police up go into the house and search for the gun yes they will find the gun they did i'm not sure of the timeline there either i don't know if it was instantly after definit was the rest or not that they went back and of course if it was later again i don't have the record in front of me it was later then but even more time to not only hide the gun in the house gun open holes and why they didn't find the gun to establish any sort of reasonable doubt was the defense's theory and establishing that definitive wasn't continuous city it was unsuccessful but it was not an unreasonable theory to establish the defendant was in current and continuous custody more importantly it didn't prejudice the fit again this what we have to keep the juror separate from the booth hearing situation  as far as the jurors concerned the defense counsel gave his reasoning at the evidence here evidence jury hearing why he didn't want to pursue further questioning of this year it was our search warrant  observation by the officer that saw the fit with the gun with a party that point to again there was no the jerk coming back in there was no prejudice there every cause that bitter and all the other jurors at that point knew he was in custody there was no i mean it would be ridiculous for that jury to think that this guy must be unsafe even shackled right now while he wasn't in shackles during the whole rest of the trial it's clear that to any reasonable person that this defendant who was in custody who of assuming all defendants in custody which was getting ready to be transported out for a walk that's what a reasonable person would conclude with that you're seeing that at that point there was no prejudice  council didn't want to highlight this issue further with this juror she saw the defendant for a brief moment in the shackles there's multiple reasons why he didn't wouldn't want to pursue further questioning therefore the first promise strictly clearly fails there even if this issue wasn't procedurally defaulted to party talk about prejudice there's no way to find it was prejudiced both problems the strickland fail in this case and more importantly it was manifestly eroni is for the trial court to determine that there we strike that from his argument and he did not contact me prior to the argument today about this case and he did not share it with me before the argument began the same is also argued that this issue is procedurally to follow because it could have been raised on additionally regarding the jerk who walked into the courtroom i excerpted the that the court statement regarding that's the only thing that was in the record on direct appeal about the litter coming in and the court says that  a jerk came in and may have seen the defendant in custody there was no indication of the jerk did see the defendant in shackles and there is no mention in the record that when the court said in custody have done here the state says that really a sufficiency of the evidence sort of argument is misplaced because this isn't direct appeal that the superiorly misunderstands the legal standards that we're working with here if play we're not arguing that the evidence is insufficient to sustain a conviction we're arguing that the evidence i would say at worst is closely balance at best again i think it raises real questions about the no search warrant in this case when cory was abreast of the police had approached his girlfriend and so i would call the other can reserve the house correct here as she she initially said no and corey said no please go ahead let them it was never intended that he be treated as such in the realm of promoter spruce if we permitted the suggestion of man to such treatment before the courts of our land we have paved the way for him to be tried all tied to a log or in the steel cage as well as in chains and shackles hoary has yet to have a trial where she is guaranteed that right but being innocent till proven guilty as i said during my national argument every single day of his trial he had that ri analysis the next step there is if there is a due process or as there is here because the court did not ensure the chakales were require the next step in the analysis is to determine whether the error was harmless beyond reasonable doubt again