ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Harding, 2012 IL App (2d) 101011

Appellate Court

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

JACK D. HARDING, Defendant-Appellant.

 District & No. Second District

Docket No. 2-10-1011

Filed February 21, 2012

Held

(Note: This syllabus

constitutes no part of

the opinion of the court

but has been prepared

by the Reporter of

Decisions for the

convenience of the

reader.)

Defendant’s conviction for domestic battery was affirmed,

notwithstanding his contention that it was plain error to have a bench trial

while he was shackled and in prison attire without holding a hearing

under Boose, since the error was invited when the trial court agreed to the

request of defendant’s counsel to have one or both of defendant’s hands

unshackled and plain-error review was precluded.

Decision Under 

Review

Appeal from the Circuit Court of Lee County, No. 10-CF-123; the Hon.

Ronald M. Jacobson, Judge, presiding.

Judgment Affirmed.
Counsel on

Appeal

Carol L. Anfinson, of Aurora, for appellant.

Henry S. Dixon, State’s Attorney, of Dixon (Lawrence M. Bauer and

Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s

Office, of counsel), for the People.

Panel PRESIDING JUSTICE JORGENSEN delivered the judgment of the

court, with opinion.

Justices Bowman and Hutchinson concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Jack D. Harding, appeals from his conviction of domestic battery (720 ILCS

5/12-3.2(a)(1) (West 2008)). He contends that it was plain error for the court to hold a bench

trial while he appeared shackled and in prison attire, without having held a hearing under

People v. Boose, 66 Ill. 2d 261, 265 (1977). The State contends that the error was invited

when defense counsel sought only to have one or both hands unshackled and the court

agreed. In the alternative, the State contends that the evidence was not closelybalanced under

the first prong of the plain-error test. We determine that the error was invited, foreclosing

plain-error review. Accordingly, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On May 19, 2010, defendant was charged with two counts of domestic battery. Count I

alleged that he made physical contact of an insulting or provoking nature with his wife,

Karen Harding. Count II alleged that he caused her bodily harm. Bail was initially set at

$5,000, but it was lowered at a later hearing, with the condition that defendant stay away

from his wife and wear a monitoring bracelet. Defendant never posted bail.

¶ 4 On August 3, 2010, a bench trial was held. Defendant appeared, wearing prison attire and

with his legs and hands shackled. Before trial, defendant’s counsel told the court, “I am

requesting the Defendant, in orderto participate meaningfully in the trial, be allowed to have

his hand shackles removed. He can keep his feet shackles on and that I be permitted to hand

him this pen.” The court asked the bailiff for an opinion on the matter, and he said that he

had discussed the matter with counsel and would not have a problem if one hand were freed.

The court then agreed and allowed one hand to be freed. There was no objection to freeing

only one hand or to the leg shackles or prison attire. At trial, defendant was identified by

several witnesses as the person wearing “black and white stripes” or “the jumpsuit.”

¶ 5 Defendant’s wife testified that, on May 14, 2010, she went with defendant to a bar in

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Dixon, Illinois, where she drank beer and shots of tequila. She did not remember leaving the

bar, but remembered falling on her knees and waking up on her back in a parking lot.

¶ 6 Nicholas Von Schrott, a paramedic, testified that he was at the bar that night and

witnessed an altercation in the parking lot. He stated that he had an unobstructed view of

defendant shouting at his wife for about 10 seconds, and then he saw defendant punch his

wife in the face with a closed fist, causing her to fall to the ground on her back. Von Schrott

then stepped in front of defendant, and other bystanders assisted him in moving defendant

away from his wife. Von Schrott next attended to defendant’s wife, who he said was

moaning and still lying on her back.

¶ 7 In a May 15, 2009, statement to police, Von Schrott said that, after defendant punched

his wife, causing her to fall to the ground, defendant jumped on top of her and punched her

again on the back of the head. At trial, Von Schrott said that his statement to police would

be the most accurate, because his testimony at trial was based on his recollection after many

months had passed. Von Schrott also could not recall whose vehicle he arrived in, how many

bars he went to, whom he drank with, or whom he rode home with. Von Schrott admitted

that he had been drinking that evening, but he also stated that he did not drink to the point

of intoxication and that he would have been comfortable driving.

¶ 8 Scott Douglas Romine, a paramedic who was with Von Schrott at the bar, testified that

he arrived after the altercation between defendant and his wife and saw Von Schrott telling

defendant to get back, while defendant tried to push through a crowd of people toward his

wife. Romine described defendant’s demeanor as confrontational and aggressive.

¶ 9 Officer Chris Plancho of the Dixon police department testified that he responded to a call

about an altercation in a parking lot and found defendant’s wife on the ground on her

stomach. She had dirt on her shirt, arms, and face and was crying and smelled of alcohol.

Plancho testified that he gave defendant’s wife a ride home and observed that she was

heavily intoxicated and staggering. Plancho did not observe any red marks on her or any

bruising or injuries. Another officer arrested defendant, who denied that he struck his wife.

¶ 10 After the close of the State’s case, the court granted defendant’s motion for a finding in

his favor on count I. After trial, the court found him guilty of count II. In doing so, the court

stated that the case “rises or falls on Mr. Von Schrott’s testimony,” as he was the only person

who testified that defendant punched his wife. The court specifically expressed concern that

there were discrepancies in Von Schrott’s testimony, and it said that there were “serious

concerns” about the accuracy of his memories. Ultimately, however, the court decided that

it believed Von Schrott’s testimony that defendant punched his wife. Accordingly, the court

found defendant guilty. Defendant was sentenced to four years’ incarceration. He did not

make any posttrial motions, and he appeals.

¶ 11 II. ANALYSIS

¶ 12 Defendant contends that it was plain error for the court to hear the trial while he appeared

in prison attire and shackles, which he argues denied him his right to a fair trial. Defendant

concedes that he failed to object at trial, thus limiting review of the issue to plain error. At

oral argument defendant also conceded that, to the extent leg shackles are at issue, the error

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was invited and is not subject to plain-error review.

¶ 13 “In People v. Boose, 66 Ill. 2d 261, 265 (1977), the court held that the shackling of an

accused should be avoided if possible because shackling: (1) tends to prejudice the jury

against the accused; (2) restricts the accused’s ability to assist his counsel during trial; and

(3) offends the dignity of the judicial process.” In re Jonathan C.B., 2011 IL 107750, ¶ 67.

“Therefore, Boose held that an accused should not be kept in restraints while in court and in

the presence of the jury unless there is a manifest need for such restraints.” Id. (citing Boose,

66 Ill. 2d at 265-66). “The Boose court set forth 13 factors to be considered in deciding

whether there is a manifest need to restrain a defendant at trial: (1) the seriousness of the

offense; (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; (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; (9) the risk

of mob violence or of attempted revenge by others; (10) the possibility of rescue attempts by

any co-offenders at large; (11) the size and mood of the audience; (12) the nature and

physical security of the courtroom; and (13) the availability of alternative remedies.” People

v. Clark, 406 Ill. App. 3d 622, 635 (2010) (citing Boose, 66 Ill. 2d at 266-67). The principles

from Boose have recently been codified in Illinois Supreme Court Rule 430 (eff. July 1,

2010), which mandates in part:

“An accused shall not be placed in restraint of any form unless there is a manifest

need for restraint to protect the security of the court, the proceedings, or to prevent

escape. Persons charged with a criminal offense are presumed innocent until otherwise

proven guilty and are entitled to participate in their defense as free persons before the

jury or bench. Any deviation from this right shall be based on evidence specifically

considered by the trial court on a case-by-case basis.”

¶ 14 The record should clearly disclose the reason underlying the trial court’s decision for the

shackling and show that the defendant’s attorney was given an opportunity to oppose this

decision. Boose, 66 Ill. 2d at 266-67. These principles also apply to bench trials, as shackling

restricts the ability of a defendant to cooperate with his attorney and to assist in his defense

and jeopardizes the presumption of innocence. In re Staley, 67 Ill. 2d 33, 37 (1977). The

appearance in prison attire has generally been addressed under the same reasoning as in

Boose, often in conjunction with circumstances in which the defendant was also shackled.

See id.; People v. Tedrick, 377 Ill. App. 3d 926, 928 (2007).

¶ 15 Here, the court erred when it failed to place on the record its reasons for the shackling

and the appearance in prison attire. Indeed, it appears that the court failed to consider the

factors from Boose at all. However, defendant did not object at trial. He now contends that

the matter was plain error, because the evidence was closely balanced and the error alone

threatened to tip the scales of justice against him, while the State argues that it was invited

error, which is not subject to plain-error analysis.

¶ 16 A defendant’s failure to object at trial and to raise an issue in a posttrial motion operates

as a forfeiture of the right to raise the issue as a ground for reversal on review. People v.

Harvey, 211 Ill. 2d 368, 385 (2004). The plain-error rule is a narrow and limited exception

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and is applied to ameliorate the harshness of strict application of the forfeiture rule. Id. Under

the plain-error rule, a reviewing court may consider a forfeited claim when: “(1) a clear or

obvious error occurred and the evidence is so closely balanced that the error alone threatened

to tip the scales of justice against the defendant, regardless of the seriousness of the error, or

(2) a clear or obvious error occurred and that error is so serious that it affected the fairness

of the defendant’s trial and challenged the integrity of the judicial process, regardless of the

closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). “In plain-error

review, the burden of persuasion rests with the defendant.” People v. Thompson, 238 Ill. 2d

598, 613 (2010).

¶ 17 However, plain-error review is forfeited when the defendant invites the error. “[A]

defendant’s invitation or agreement to the procedure later challenged on appeal ‘goes beyond

mere waiver.’ ” Harvey, 211 Ill. 2d at 385 (quoting People v. Villarreal, 198 Ill. 2d 209, 227

(2001)). The issue is sometimes referred to as one of estoppel. Id. That is, under the doctrine

of invited error, a defendant may not request to proceed in one manner and later contend on

appeal that the course of action was in error. Id. To allow a defendant to use the exact ruling

or action procured in the trial court as a vehicle for reversal on appeal would offend notions

of fair play and encourage defendants to become duplicitous. Id. It would also deprive the

State of the opportunity to cure the alleged defect. People v. Bush, 214 Ill. 2d 318, 332

(2005). Thus, these principles also apply to preclude plain-error analysis. Where the

defendant invited the error, our supreme court has declined to address any related plain-error

claim. See, e.g., People v. Patrick, 233 Ill. 2d 62, 76 (2009).

¶ 18 The invited-error rule was applied in part by the Third District to a case involving

shackling in People v. Woods, 373 Ill. App. 3d 171 (2007). There, on two occasions, counsel

for the defendant asked that handcuffs be removed so that the defendant could take notes

during trial. At the time of the first request, defense counsel suggested that doing so was

permissible because the defendant’s legs would remain shackled, and the court allowed the

handcuffs to be removed. On the second occasion, counsel asked that the defendant have one

or both handcuffs removed and the court allowed one. The Third District held that any error

in regard to the handcuffs was invited, but the court then addressed whetherit was plain error

for the court to fail to remove the leg shackles.

¶ 19 We agree with the State that the error was invited. Although Woods considered only a

specific part of the issue of restraints to be invited error, the invited-error rule contemplates

that a defendant may not request to proceed in one manner and later contend on appeal that

the course of action was in error. The issue of appearance in shackles and prison attire is

generally analyzed as a whole, as the overriding concern is a fair trial based on how the

defendant appears and his or her ability to assist in the defense. Thus, we decline to part and

parcel out individual items of restraint or clothing as the court did in Woods.

¶ 20 Here, defendant specifically concedes that the issue as it pertains to the leg shackles was

invited error, as trial counsel specifically stated that he could keep those on. Trial counsel

then asked that the hand shackles be removed so that defendant could “participate

meaningfully in the trial.” Counsel at some point discussed the matter with the bailiff, who

stated no objection to proceeding with one of defendant’s hands freed. The court agreed to

allow one hand to be freed, and the record is silent as to whether the shackle on the other

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hand was physically attached to anything. Likewise, the record does not include the

conversation between counsel and the bailiff. In any event, what is clear is that counsel

specifically asked that defendant be freed in a way that would allow him to participate

meaningfully in the trial, by holding a pen, and he was granted that request. By not asking

for more, such as the removal of all shackles and prison attire, and in light of the deficiencies

in the record, we view counsel’s request as specifically limited to a request to remove enough

items so that defendant could meaningfully participate in the trial.

¶ 21 One of the key reasons for a Boose hearing is to allow counsel to oppose the defendant’s

appearance in restraints and prison garb. By specifically raising the issue in a limited form,

counsel invited the court to address the matter in that same limited form. Here, counsel made

a limited request, that request was granted without further objection, and defendant cannot

now contend that it was error for the court to grant that request without going further.

¶ 22 Because the error was invited, we need not address plain error. However, we note that 1

the issue of restraints can be troubling, especially in light of an incomplete record, as recently

seen in In re Jonathan C.B., a case involving shackling and plain error. While In re Jonathan

C.B. is not applicable to our decision here, it illustrates the difficulties an appellate court

faces when a defendant appears in shackles without a hearing on the issue. Thus, when a trial

court is presented with a defendant who appears in prison attire and restraints, even for a

bench trial, and even when counsel agrees to the removal of only a portion of the restraints,

the best course of action is to hold a Boose hearing so that the reasons for the defendant’s

appearance and the extent of any agreement can be considered by the court and placed on the

record.

¶ 23 III. CONCLUSION

¶ 24 Trial counsel invited the error raised on appeal, precluding plain-error review.

Accordingly, the judgment of the circuit court of Lee County is affirmed.

¶ 25 Affirmed.

Although we need not address plain error, we observe that there have been recent

1

developments in how the first prong of the plain-error test is addressed in regard to a showing of

prejudice. The State, citing to the recent case of People v. White, 2011 IL 109689, contends that the

defendant must show specific prejudice. But White did not overrule the basic rule from People v.

Herron, 215 Ill. 2d 167, 186-87 (2005), that, for the first prong, the defendant need show only that

the evidence was so close that the error “severely threatened” to tip the scales of justice; that is,

given the closeness of the evidence, the error might have produced the outcome. Thus, the principles

from Herron still apply to the first prong of plain-error review. See People v. Vesey, 2011 IL App

(3d) 090570, ¶ 19 (discussing that White did not overrule Herron). Nor did the court’s recent

decision in People v. Adams, 2012 IL 111168, overrule Herron.

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