## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J ACK D. HARDI

NG, De fenda

nt-Appellant.

District & N o. Second District Docke t No. 2-10-1011

Filed Fe bruar y 21, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) De fe n d an t ’s co n v i ct i o n fo r d o m es t i c b a t t e ry w a s af fi rm ed
, notwithstanding his contention that it was plain err or to have a bench trial while he was shackle d and in prison attir e wi thout holding a hearing under Boose
, since the err or was invited when the trial court agree d to the
reque st of defe ndant’s counsel to have one or both of defe ndant’s hands unshackle d and plain-e rror revie w was pr eclude d.

Dec ision Under
Review Appea l f rom the Circuit Court of L ee County
, No. 10-CF- 123; the Hon. Ronald M. J acobson, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Carol L . Anfinson, of Aur ora, f or appe llant.

Henr y S. Dix o n , S t ate’ s Attorney
, of Dix on (L awr ence M. Ba uer and Victoria E. J ozef, both of State’s Attorney s Appel l at e Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel PRES I DI NG J US TI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
Ju stices Bowman and Hutchinson concur red in the judgme nt a

n d o p in io n

.

OP INION

¶ 1 Def

endant, J ack D. Har ding, appea ls from his conviction of domestic battery (720 I L CS 5/12-3.2(a) (1) (West 2008)). He contends that it was plain err or for the court to hold a bench trial while he appea

red shackle d and in prison attire, without having held a hearing u n d er People v. Boose
, 66 I ll. 2d 261, 265 (1977). The State contends that the err or was invited when defe nse counsel soug ht only to h av e one or both hands unshackle d and the court agree d. In the alterna

tive, the State contends that the evidenc e was not closely balanc ed under the first prong of the plain-er ror test. We deter

mine that t h e err or was invited, fore closing plain-er ror r eview. A ccor dingly , we a ffirm.

¶ 2 I . BA CKGROUND ¶ 3 On May 19, 2010, defe ndant was char g ed with two counts of domestic battery

. Count I alleg ed that he made phy sical contac t of an insulti ng or provoking natu re wi th his wife, Kar en Har ding. Count I I alleg ed that he caus ed h er bodily harm. Ba il was initially set at $5,000, but it was lowere d at a later hearing, with the condition that defe ndant stay awa y from his wife a

nd wea r a monitoringbrac elet. De fenda nt never posted bail. ¶ 4 On August 3, 2010, a bench trial was held. Def endant appea

red, wea ring prison attire and with his leg s and hands shackle d. Be fore trial, defe ndant’s counsel told the court, “I am reque sting the Def

endant, in order to participate meaning fully in the trial, be allowed to have his hand shackle s remove d. He can keep his fee t shackle s on and that I be permitted to hand him this pen.” The court asked the bailiff for an opini on on the m atter, and h e s aid t hat he had discussed the matter with counsel and would not have a problem if one hand wer e fre ed. The court then agree d and allowed one hand to be fre ed. There was no objection to f ree ing only one hand or to the leg shackle s or prison attire. At trial, d efendant was identified by

sever al witnesses a s the person w earing “black a nd white stripes” or

“the jumpsuit.” ¶ 5 De fe n d an t ’s wi fe testified that, on May 14, 2010, she went with defe ndant to a bar in

-2-Dix on, I llinois
, wher e she drank beer and shots of tequila. She did not reme mber leaving the

bar, but re membere d fallingon her kne es and w akingup on her ba ck in a pa rkinglot. ¶ 6 Ni cholas Von Schrott, a para medic, testified that he was at t h e b ar t h at n i gh t an d wi t n essed an alterc ation in the parking lot. He stated that he had an unobstructed v i ew o f defe ndant s houting at his wife for about 10 seconds, and then he s aw d ef en dant punch his wife in the fac e with a closed fist, causing her to fall to the g round on her back. Von Schrott then s tepped in front of defe ndant, and other by standers a ssisted him i n moving defenda nt

awa y from his wife. Von Schrott next attended to defe ndant’s wife, wh o h e said was moaningand still lying on he r bac k. ¶ 7 In a May

15, 2009, statement to police, Von Schr ott said that, afte r defendant punched his wife, causing her to fall to the g round, defe ndant jumped on top of her and punched her
ag ain on the bac k of the he ad. At trial, Von Schr ott said that his st atement to poli ce would be the most acc urate , beca use his testimony at trial was based on his rec ollection afte r many months had passed. Von Schrott also could not rec all whose vehicle he arr ived in, how many bars he went to, wh o m h e dra n k with, or whom he rode home wit h. Von S chrott admit ted that he had been drinking that evening , but he also st ated that he did not drink to the poi nt of intox ication and that he would have be en comf ortable dr iving. ¶ 8 Scott Doug las Romine, a para medic who was with V on Schrott at the bar, testified that he arr ived afte r the alterc ation betwee n defe ndant and his wife and saw Von Schrott telling defe ndant to g et bac k, while def endant trie d to push throug h a crowd of people toward hi s wife. Romine desc ribed de fenda nt’s demea

nor as c onfrontational a

nd ag gressive. ¶ 9 Offic er Chris Plancho of the Dix on police depar tment testified that he responde d to a ca ll about an alterc ation in a parking l o t an d fo u nd defe ndant’s wife on the g round on her stomach. She had dirt on her shirt, arms, an d fa ce an d was cry ing and smelled of alcohol. Plancho testified that he g ave defe ndant’s wife a ride home and observe d that she was heavily intox icated and stagger i n g. P l ancho did not observe any red marks on her or any bruising or injuries. Another office r arr ested defe ndant, who denied that he struck his wife. ¶ 10 After the close of the State’s case , the court g rante d defe ndant’s motion for a findingin his favor on count I

. After trial, the court found him guilty of count I I

. 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 defe ndant punched his wife. The court specific ally expressed conce rn that there wer e discrepa

ncies in Von S ch ro t t ’s testimony
, and it said that there wer e “ser ious

conce rns” about the acc urac y of his memories. Ultimately
, howeve r, the court decide d that it believed Von Schrott’s testimony that defe ndant punched his wife. Acc ording ly
, the court found d ef endant guilty

. Def

endant was sentenc ed to four year s’ incar cer ation. He did not make a ny posttrial motions , and he a ppeals.

¶ 11 I I . ANALYSI S ¶ 12 Def

endant contends that it was plain err or for the court to hear the trial while he appea red in prison attire and shackle s, which he arg ues denied him his rig ht to a fair trial. Def endant

conce des that he f

ailed to object at trial, thus limit ing review of the issue to plain er ror. At oral argument defe ndant also conce ded that, to the extent leg shackle s are at issue, the err or

-3-was invited and is not subject to plain-e rror revie w. ¶ 13 “In People v. B o o s e , 66 I ll. 2d 261, 265 (1977), the court held that the s hackling of an

acc used s h o u l d be avoided if possible beca use shackling : (1) tends to prejudice the jury
ag ainst the ac cused; (2) restric ts the acc used’s a bility to assist his counsel during tr ial; and (3) offe nds the dignity of the judicial proce ss.” In re Jonathan C.B.
, 2011 I L 107750, ¶ 67. “The ref ore, Boose held that an acc used should not be kept in restra ints while in court and in the prese nce of the jury unless there is a manifest need for such restra ints.” Id. (citing Boose
, 66 I ll. 2d at 265-66). “The Boose court s et fo rt h 1 3 factors to be considere d in deciding whether there is a manifest need to restra in a defe ndant at trial: (1) the seriousness of the offe nse; (2) the defe ndant’s tempera ment and char acte r; (3) the defe ndant’s ag e and phy sical char acte ristics; (4) the defe ndant’s past rec ord; (5) any past esca pes or attempted esca

pes; (6) evidenc e of a prese nt plan of esca pe b y t h e d efe ndant; (7) any threats by the defe ndant to harm others or cre ate a disturbance ; (8) evidenc e of self-de structive tendenc ies; (9) the risk of mob violence or of attempted reve ng e by others; (10) the possibili ty of resc ue attempts by
any co-offende rs at larg e; (11) the siz e and mood of the audienc e; (12) the nature and phy sical secur ity of the courtroom; and (13) the availability of alternative reme dies.” People

v. Clark
, 406 I ll. App. 3d 622, 635 (2010) (citing Boose
, 66 I ll. 2d at 266-67). The principles from Boose have rec ently been codified in I llinois Suprem e Court Rule 430 (ef f. J uly 1, 2010), which ma

ndates in par

t: “An acc used shall not be place d in restra int of any form unless there is a manifest need for restra int to protec t the secur ity of the court, the pro cee dings, or to preve nt

esca pe. Persons char g ed with a criminal offe nse are presumed innocent until other wise
proven guilty and are entit l ed to participate in their defe nse as fre e persons befor e the jury or bench. Any deviation from this rig ht shall be b ased on evidenc e specific ally considere d by

the trial cour

t on a ca se-by-ca se basis.” ¶ 14 The rec ord should clea rly disclose the rea son underly ing the trial court’s decision for the shackling and show that the defe ndant’s attorney was g iven an opportun i ty t o o p pose this decision. Boose
, 66 I ll. 2d at 266-67. These principles also apply to bench trials, as shackling restric ts the ability of a defe ndant to cooper ate with his attorney and to assist in his defe nse and jeopar dize s t h e p re s u m p tion of innocenc e. In re Staley
, 67 I ll. 2d 33, 37 (1977). The
appea ranc e in prison attire has g ener ally been addre ssed under the same re as o n i ng as in Boose , often in conjunc tion with circumstance s in which the defe ndant was also shackle d. See id. ; People v . Tedrick , 377 I ll. App. 3d 926, 928 (2007). ¶ 15 Her e, the court erre d when it failed to place on the record it s re as o n s for the shackling and the appea

ranc e in prison at t i re

. I n d eed, it appea rs that the court failed to consider the fac tors from Boose at all. Howeve r, defe ndant did not object at trial. He now contends that the matter was plain err or, beca use the evidenc e was closely bal anced and the err or alone threatened to tip the sca les of justice ag ainst him, while the State argues that it was invited

err or, which is not subject to plain-e rror analy sis. ¶ 16 A defe ndant’s failure to object at trial and to raise an issue in a posttrial motion oper ates

as a forf eiture o f t h e ri ght to raise the issue as a g round for reve rsal on revie w. People v. Harve y , 211 I ll. 2d 368, 385 (2004). The plain-er ror rule is a narr ow and limit ed exception

-4-and is applied to ameliorate the harshne ss of strict application of the forf eiture rule. Id. Under the plain-e rror

rule, a revie wing court may consider a forfeited claim when: “(1) a c lear or obvious err or occur

red and the evidenc e is so closely balanc ed that the err or alone threatened
to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r or obvious er

ror oc curr ed and that error is so serious that it aff ecte d the fa irness of the defe ndant’s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the closene ss of the evidenc e.” People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007). “In plain-er ror revie w, the burden of persua sion rests with the defe ndant.” People v. Thompson
, 238 I ll. 2d 598, 613 (2010). ¶ 17 Howeve r, plain-er ror revie w i s fo rf

ei t ed when the defe ndant invites the err or. “[A] defe ndant’s invitation or agree ment to the proce dure later challeng ed on appea l ‘g oes beyond

mere waiver .’ ” Harve

y , 211 I ll. 2d at 385 (quoting People v. Villarreal
, 198 I ll. 2d 209, 227 (2001))

. The issue is sometimes ref err ed to as one of estoppel. Id. That is, under the doctrine of invited err or, a defe ndant may not reque st to proce ed in one manner and later contend on appea l that the course of action was in err or. Id. To allow a defe ndant to use the exact ruling

or action procur ed in the trial court as a vehicle for reve rsal on appea l would offe nd notions

o f fair play and encoura g e defenda nts to become duplicitous. Id. It would also deprive t h e State of the opportunity to cure the alleg ed defe ct. People v. B u s h
, 214 I ll. 2d 318, 332 (20 0 5 ). T h us, these principles also apply to prec lude plain-er ror analy sis. Where the defe ndant invited the err or, our supreme court has declined to addre ss any related plain-er ror claim. See, e.g. , People v . Patrick, 233 I ll. 2d 62, 76 (2009). ¶ 18 T h e i n v i t ed -error rule was applied in part by the Third District to a case invo l v i n g shackling in People v. W

oods
, 373 I ll. App. 3d 171 (2007). There
, on two occa sions, counsel for the defe ndant asked that handcuf fs be rem o v ed s o t hat the defe ndant could take notes during trial. At the time of the first reque st, defe nse counsel sug g ested that doing so was permissible beca

use the defe ndant’s leg s would rema in shackle d, and the court allowed the handcuf fs to be remove d. On the second occa sion, counsel asked that the defe ndant have one

or both handcuf

fs remove d and the court allowed one. The Third District held that any err or in reg ard to the handcuf

fs was invited, but the court then addre ssed whether it was plain err or for the c ourt to fail to remove the legshackle s. ¶ 19 We agree with the S tate that the error was invited. Although W o o d s co n s idere d only

a specific part of the issue of restra ints to be invited err or, the invited-err or rule contemplates that a defe ndant may not reque st to proce ed in one manner and later contend on appea l that the cours e o f ac tion was in err or. The issue of appea ranc e in shackle s and prison attire is
g ener ally analy

zed as a whole, as the overr iding conce rn is a fair tri al b as ed on how the defe ndant appea

rs and his or her ability to assist in the defe nse. Thus, we decline to part and
parc el out individual items of restraint or c lothing as the court did in W oods

. ¶ 20 Her e, defe ndant specific ally conce des that the issue as it perta ins to the leg shackle s was invited err or, as trial counsel specifica lly stated t hat he coul d k ee p t h o se on. Trial counsel then asked that the hand shackle s be remove d so that d ef en d an t could “par

ticipate meaning fully in the trial.” Counsel at some point discussed the matter with the bailiff, who stated no objec tion to proce eding with one of defe ndant’s hands fre ed. The c ourt agree d to all ow one hand to be fre ed, and the rec ord is silent as to whether the shackle on the other

-5-hand was phy sicall y at t ac h ed to any thing. L ikewise, the rec ord does not include the

conver sation betwee n co u nsel and the bailiff. In any event, what is clea r is that counsel speci fi ca l l y asked that defe ndant be fre ed in a way that would allow him to participa te meaning fully in the trial, by holding a pen, and he was g rante d that reque st. By not asking for more, such as the remova l of all shackle s and prison attire, and in light of the defic iencies in the rec ord, we view counsel’s reque st as specific ally limit ed to a reque st to remove enough items so that defenda

nt could meaning fully

participate in the trial. ¶ 21 One of the key rea sons for a Boose hearing is to allow counsel to oppose the defe ndant’s
appea ranc e in restra ints and prison g arb. By specific ally raising the issue in a limit ed form, counsel invited the court to addre ss the matter in that same limit ed form. Her e, counsel made a limited r equest, that reque st w as grante d without f urther objection, and def

endant c annot now contend that it was err or for the cour t to gr ant that re quest without goingfurther

. ¶ 22 Be cause the err or was invited, w e need not a ddress plain err or. Howeve r, we note that 1 the issue of restra ints can be troubling, espec ially in light of an incomplete rec ord, as rec ently

seen in In re Jonathan C.B.
, a case involving shackling and plain err or. Whil e In re Jonathan C

. B

. is not applicable to our decision here
, it illust rate s the difficulties an appellat e co u rt fac es when a defe ndant appea rs in shackle s without a hearing on the issue. Thus, when a trial
court is p resented with a defe ndant who appea rs in prison attire and restra ints, even for a bench trial, and even when counsel agree s to the remova l of only a portion of the restra ints, the best course of a ct i o n i s t o h o l d a Boose hearing so that the reasons for the defe ndant’s
appea ranc e and the extent of any agree ment can be considere d by the court and place d on the

rec ord.

¶ 23 I I I . CONCLUSI ON ¶ 24 Trial counsel invited the err or ra i s ed o n ap p ea l
, p re cl u d i n g p l ai n -e rr or re view. Acc ording ly , the judg ment of the c ircuit court of L ee County

is affirme d.

¶ 25 Affir

med.

Alt hough we nee d not add re ss pla in error , w e o b s e r ve tha t the re have bee n re cen t 1 develo pm ent s in h o w t h e f ir st pro ng of the pla in-erro r te st is add re sse d in re gard to a sho wing of
pre j udi ce. T he Sta te , ci ti ng to the re cen t cas e of Peop le v. W hit e , 2011 I L 1096 89, con te nds tha t the def end ant m ust sho w spe ci fi c pre

j udi ce. But W

hit e did not ove r ru l e t h e b a si c rul e fr om Peop le v. Herr on , 215 I ll

. 2d 167, 186-87 (20 05)
, tha t, for the fi rs t pron g, the def end ant nee d show only tha t the eviden ce was so cl ose tha t the error “se verel y thr eat ene d” to ti p t h e sca le s of j ust ic e; tha t is
, giv en the cl ose nes s of the eviden ce, the error m ight have pro duc ed the out come. T hus
, the pri nci ple s fr om Herr on st il l app ly to the fi rs t p ron g of pl ai n- errorre view. Se e Peop le v. V ese y , 201 1 I L App (3d ) 0905 70, ¶ 19 (di scu ssi ng tha t W hit e di d n o t o ve r rul e Herr on ). Nor did the cou rt ’s re cen t dec is ionin Peop le v. A dams , 201 2 I L 111 168, overrule Herr on

.
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