1 NOTICE Decision fi led 12/28/07. The text of this decision may be changed or correct ed prior

to t he fi ling of a Peti tio n for

Rehearing o r th e disposit ion of

the same. NO. 5-07-0182 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff

-Appell ee, ) Fayett e County. ) v. ) No. 06-CF-108 ) RODNEY D. TEDRI CK, ) Ho nora ble ) Michael D. McHaney, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

________________________________________________________________________ JUST ICE D ON OV AN delivered the op inion o f the co urt: De fend ant, Rod ney D . Tedrick, w as convicted, after a b ench trial in the circuit cou rt of Fay ette County, of domestic battery under secti on 12-3.2(a) (1) of t he Crimina l Code of 1961 (720 I LCS 5/12- 3.2(a)( 1) (West 2006)) , and he was sent enced to f ive years' impriso nme nt. Defendant appeal s, arguing he was denied a fa ir t rialbecause he w as shackl ed and dresse d in an o range ja il uniform at the trial. H e furth er con tends he is entitled to additional s entenci ng credit for time s erved in custody af ter hi s arre st on July 9, 2006. On July 9 , 200 6, the 16-y ear-old victim decid ed to d rive to her gr andmother' s house. She encount ered J ake an d Za ch, w ho w ere loo king for he r father, defen dant. The victim dro ve them to Vandal ia Lake, where she bel iev ed her father mi ght be, ar riv ingaft er 12 a .m. De fend ant, wh o w as fishin g, wa s prese nt at the lake site alo ng w ith M att , Tra cy, another individu al, and a two -year- old girl. Defendanthad b een d rinking be er and appe ared to be into xi cated . At som e poin t, defendant

began pushing the victim around in a pl ayful manner untilshe tol d him to s top. For some unkno wn reaso n, de fend ant the n too k off his p ants an d bega n w alking arou nd h alf2

naked. Th e vi ctim a sked hi m sever al times to put his pant s back on. Ins tead of doing so, defendant

became angry a nd sla pped the victim. She pic ked up the little girl an d to ld Ja ke and Zach she wanted to l eave. Defendant g rabbedher, sla pped her, a nd th en too k the ch ild away from her. Matt came to her rescue, which caused def endant t o star

t hit tingMatt. The vi cti m, in turn, tried to push d efendan t off Matt, but def

endant t urned around and

struc k her
on the head wit

h his fi st. The v ictim test ifi ed that it " really hurt" when def endanthit her

and that she cri ed profusely in res ponse. Defendant punched Matt sev eral mor e time s while t he victim was on the g round screami ng for him to s top. S he testifi ed that defendant

then k ick ed her while she was on t

he ground. The victim ranto he r c ar an d d ro ve to he r g ra nd m ot he r's place to cal l for

help. Her aunt

decided t o call the poli ce. When the respondi ng offi cer arri ved, he found Matt bl eedingfrom hi s nose and mouth and defenda nt asleep in a ca mper, nakedfrom the waist down. He asked d efend ant to get d ressed and p laced him u nder arrest. According

to the o fficer, d efend ant ap peare d to be quite intoxi cated and was making little
sense. Defendanttest ifi ed he had lost about 50 pounds when he w as last in jail and on Ju ly 9 was w earing clothes that he h ad w orn before he w ent to prison. Defendant had just been
r elease d from prison two days earlier. Defendant had helped Matt move so me furni tur e earli er in the day b efore they w ent to the lake. Defendanthad not seen hi s daught er earl ier in the da y and wa s ups et that sh e had been out p ast cur few the nigh t befor e. W hen th e victim arri vedat the lake site, he and s he got in to "a little bit of an argume nt." Defendant tol d her that if she c ould not mind hi m, she shoul d go home to he r mother' s house. Defendant stat ed that s he kept

arguing and that he "pec ked her on top of her head. " Defendant cl aimed that she th rew hersel f down on the gr ound in res ponse and that she was not hurt . Defendant deniedhitting he r and st ated he was j ust t ryingto "t ell he r to stop." Matt ran up and knock ed him over a pi cnic t able. When he got up, his pants had fallen o ff. D efend ant res pon ded to3

the attack by hit ting Matt thre e or four times untilhe went down on the gr ound. He then pick ed up his pant s and went int o the tr aile r and fell asleep . He denie d taking off his pa nts in front of the victim or that he sm acked or kicked her. The cour t specific ally found the t esti mony of the S tate 's witnesse s to be cr edible , as opposed to the t esti mony o f defendant . The court not ed that defendant

admitt ed to bei ng intoxi catedat the time of the off ense and late r passi ng outand furt her admit

ted to making contact with the victim's he ad. T he co urt also not ed t ha t a t t he tr ia l d ef en da nt 's demonstr ation–us ing his knuckles to strike the witn ess rail as he alle gedly had done to the vi ct im 's head–was "alarming in its f orce." The cour t therefo re con clude d that th e State had proved beyond a ll r easonable doubt that defendant

was guil ty of domes tic batter y. Defendantargues on appeal t hat he was deni ed a fai r tr ial be cause he was shackl ed at the tri al an d wo re an orang e jai l unif orm, as poi nted out in the v ictim's identi fication test imony. The Stat e correc tly poi nts out , ho wever, tha t defendant for feit ed any clai m of error by failing to object at the trialto the wearing of the unif orm or shackles. Before a defendant

may be rest

rained at a tr ial , the trial c ourt must hold a hear ing on the issue, consider v arious factors in determining t he necessity of the rest rai nt, g ive the defendant

an opportuni ty to obj ect, and s tate on the r ec ord it s reasons for empl oying t he restrai nts. Pe ople v. Boose , 66 Ill. 2d 261, 36 2 N.E .2d 303 (1977). T he shackling of a defendant

should be avoided because "(1) it ten ds to prejudi ce the j ury against the accused; (2) it restricts his a bility to as sist his co unse l during tria l; and (3) i t off ends the dignity of

the judici al process." Boose , 66 Ill. 2d at 265 , 362 N.E .2d a t 305 . Th e w earing o f restrain ts with out a s how ing of ne cessity on th e reco rd, ho we ver, is no t per se reversible error if the defendant

never objects. People v. Allen , 222 I ll. 2d 340, 353-54, 856 N.E.2d 349, 356- 57 (2006); see People v. DuPree , 353 I ll. App. 3d 1037, 8 20 N .E.2d 5 60 (200 4). The same is true for appea ring at a trial in jailclothing. Estelle v. Williams , 425 U.S. 501, 512- 13, 48 L.4

Ed. 2d 126 , 135, 96 S. C t. 169 1, 16 97 (1 976 ); Allen , 222 I ll. 2d at 354-55, 856 N.E.2d at 357. The State con cedes it wa s erro r for the t rial cou rt to allow defen dant to appe ar in handc uffs withoutfir st hol ding ahearing concerni ng the restraint s, but as the Stat e furt her points out, un der Allen , defendant 's failure to obj ect re sult ed in the forfe itur e of that error. De fend ant's only hop e for re lief wo uld b e to prove the existenc e of plain error. Defendant argues that his a ppea rance in han dcuffs and jail clothin g at his be nch tria l amou nted to plain
error because the evi dence was closely balanced. The record, howev er, shows otherwise; this was not, as de fendant contends, a close domes tic batter y case. Not onl y did the pol ice offi ce r's test imony lend c redence t o the v ictim's vers ion of t he event s, butdefendant admitt ed strikingthe vic tim on t

he head. Defendant

might have deni ed some of

wh at the victim said he had do ne to her, su ch as slapp ing her more than once and ki cki ng her, but the c ase cease d to be a true swearingcontest when he describe d and demonstr ated wha t he did do. Defendantalso admi tted t hat he would "smack " the v ictim if she dared appr oach him w hile angry, an d his demonst rati on at the tri al of how he hit her was, accor ding t o the court' s observations, "alar

ming i n its force. " Defendant f aile d to show that his ap peara nce in handc uffs and jai l clot hing c onsti tuted pl ain err or on the ground of the evi dence bei n g closely balanced. We also agree that defendant fai led to p rove tha t h e is entitl ed to rel ief under the second prong of

the pla in err or tes t, becaus e, just as in Allen , he does not , and cannot, point to anyth ing in the record show ing that h is presumpt ion of inno cenc e, his a bility to as sist his
coun sel, or the di gnit

y of the pr oceeding s was compromis ed. See Allen , 222 Il l. 2d at 353, 856 N.E.2d at 357; see also People v. Woods , 373 I ll. App. 3d 171, 176-77, 866 N.E.2d 1205, 1 209-10 (2007). Defendantnext ass erts he recei ved the ineff ecti ve ass ist ance of counse l by co un se l's failure to objec t to def

endant' s appearanc e in handcuf fs and j ail c lothing atthe trial. In or der5

to prove t

he ineff ecti veness of

counsel, a defendant

must show that

counsel' s repre sentation
was defici ent and that he suffered prejud ice as a result. Stri ckland v. Washingt on , 466 U.S. 668, 687 , 80 L. Ed. 2d 6 74, 6 93, 1 04 S. Ct. 2052, 2064 (1984). To establ ish pre judice , the defendant

must show that "there is a reason able pro babili ty t ha t, bu t f or co un se l's unprofess ional e rrors , the r esult of the proceeding would have been different." Stri ckland , 466 U.S. at 694, 80 L. Ed. 2dat 698, 104 S . Ct. at 2068. Defendant' s inef fective-as sist ance claim here m ust fail be caus e there is no re ason able p roba bility that h e w ould hav e been found not guilty if coun sel had objec ted to th e handcu ffs a nd ja il cl ot hi ng . T he vi ct im 's
vers ion of

event s was the more credib le one , espe cially co nside ring defe ndan t's drunken state at the time of the of

fense. More i mportant ly, def endant ess entia lly admi tted c ommitt ing t he crime. We agree that

in li ght of

all of the te sti mony present ed , th e tria l cou rt w oul d ha ve found defendant

guilty reg ardles s of whether he was restrained or

how he was attir ed. We therefore find no reaso n to grant defend ant a new trial on this basis. See DuPree , 353 Ill. App. 3d at 1045, 820 N.E.2d at 566-67. Defendantnext argues he is entitl ed to 219 days of se nten cingcredit fo r al l of the time
serv ed in cust ody begi nning on t he date of

his ar rest on July 9, 2006. A defendant is ent itl ed to o ne day of cre dit ag ainst his sent ence for e very day or porti on of a day he s pends i n custodyon t he o ffen se b etw een the d ate o f his a rrest and his s ente ncin g. Peop le v. Ligons , 325 Ill. App. 3d 753, 7 59, 759 N.E .2d 169 , 174 (20 01). The rule appl ies i f a defendant nev er posts bond on one or more offe nses and i s in si multane ous custody on mor e than one of fense. Peop le v. Robinson , 172 Ill. 2d 452 , 667 N .E.2d 1 305 (19 96). Defendant was arr ested on July 9, 2006, and sentenc ed on January 24, 2007. He theref ore is entitled to only 200 days of sen tencin g credit. For the for goi ng reaso ns, w e affirm the jud gment o f the circ uit cou rt of Fa yette Co unty convi cting

defendant

of domest ic battery, but we remandthis cause for the corr ecti on6

of the m ittimus to a wa rd de fend ant the prop er amo unt o f sente ncing c redit.

Affi rmed in par

t; ca use remanded.

GO LDE NH ER SH and SPOM ER , JJ., concu r.NO. 5-07-0182 I N THE AP PE LLA TE C O U R T O F IL LIN O IS

FI FTH DI STRI CT

___________________________________________________________________________________ TH E P EO PLE OF TH E ST ATE OF ILLINOIS, ) Appeal f rom the ) Circui t Court of Plaintiff

-Appell ee, ) Fayett e County. ) v. ) No. 06-CF-108 ) RODNEY D. TEDRI CK, ) Ho nora ble ) Michael D. McHaney, De fend ant-Ap pellan t. ) Jud ge, p resid ing.

___________________________________________________________________________________ Opini on Fi led : December 28, 2007

___________________________________________________________________________________ Justi ces : Honorable James K . Donovan, J.

Honorable Richar d P. Goldenhersh, J., and Hon orable Stephen L. Spomer, J., Concur

___________________________________________________________________________________ Attorn eys Daniel M. Kirwan, Deputy Defender, Dan W . Evers , Assi stant Defender, Offi ce of for the State A ppella te De fend er, Fifth Judic ial Distric t, 117 No rth Te nth Stree t, Suite Appe llant #300, Mt. Vernon, I L 62864

___________________________________________________________________________________ Attorn eys Hon. Steve Fri edel, Stat e's Att orney, Fayette County Court house, Vandali a, I L 62471; for Norb ert J. Goe tten, Director, Stephen E. Norris, Dep uty Directo r, Deirdre A. H osler, Appell ee Staff Attorn ey, O ffice of th e State's Attorn eys A ppella te Pro secu tor, 73 0 E. Illinois

Highway 15, Sui te 2, P.O. Box 2249, Mt. Vernon, I L 62864

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