Appeal from the District Court of the Seventh Judicial District, State of Idaho, Bonneville County. Hon. Jon J. Shindurling, District Judge.
The opinion of the court was delivered by: Perry, Judge Pro Tem
Judgment of conviction for robbery, vacated and case remanded.
Timothy Eugene Wright appeals from his judgment of conviction for robbery, arguing several violations of his constitutional right to a fair trial. Specifically, Wright asserts that:
(1) the district court erred when it placed him in restraints during trial and alerted the jury to that fact; (2) the prosecutor committed misconduct by eliciting testimony that Wright refused to consent to a search; and (3) the district court erred in allowing irrelevant evidence of prior acts to be introduced at trial. Although Wright asserts these errors individually warrant a new trial, in the alternative, Wright contends the errors throughout the proceedings deprived him of his right to a fair trial under the doctrine of cumulative error. We vacate the judgment and remand for a new trial.
Wright, along with two other men, was arrested and charged for suspected involvement in the armed robbery of a loan store. Two men entered the loan store, threatened employees at gunpoint, stole over $2,000 in cash, and then fled in a vehicle driven by a third man. None of the victims of the robbery positively identified Wright, but a considerable amount of circumstantial evidence implicated him as one of the two men who entered the loan store. This evidence included: a witness's description of one of the robbers matching Wright's physical characteristics; a victim's positive identification of Wright's brother as the other robber; Wright's presence as a passenger, along with his identified brother, in a vehicle pulled over by police shortly after the robbery; shoes, worn by Wright, with treads matching footprints left at the scene of the robbery; Wright's and his two associates' possession of bills in quantity and denominations matching the stolen money; ski masks consistent with those worn by the robbers found in the vehicle in which Wright was a passenger; and other circumstantial evidence. Along with this evidence presented at Wright's trial, the State also showed, over Wright's objection on grounds of relevance, that he and the two other men implicated in the robbery were in the area of the robbery on the day prior to the crime. Additionally, during its opening and closing statements and through the testimony of two witnesses, the State brought up the fact that Wright refused to consent to having the soles of his shoes photographed by investigators.
Wright was initially represented by counsel, but on the second day of the four-day trial, he sought permission from the district court to discharge his attorney and proceed pro se. The district court held a short hearing, out of the presence of the jury, and granted Wright's request. Just prior to the hearing on the discharging of counsel, the district court had ordered the use of restraints on Wright because of an incident with a marshal outside of the courtroom during a court recess. After reseating the jurors, the district court alerted the jury to the fact that Wright was restrained and would remain so until he maintained self-control. It is unclear from the record whether Wright continued to be restrained throughout the remainder of proceedings. At the close of trial, the jury found Wright guilty of one count of robbery, Idaho Code §§ 18-6501, 18-6503. The district court entered a judgment of conviction and imposed a unified life sentence, with fifteen years determinate. Wright timely appeals. He asserts each of the following errors violated his constitutional right to a fair trial and warrants a new trial: (1) the use of restraints and the jury's awareness of them; (2) prosecutorial misconduct in disclosing Wright's refusal to consent to a search; and (3) the use of irrelevant prior act evidence. If no error alone warrants retrial, Wright contends that the cumulative error doctrine should apply.
As a preliminary matter, the State asserts that Wright failed to object to the restraints on any ground and, without an objection in the trial court, fails to show fundamental error under the Perry*fn1 analysis. In a situation involving the use of restraints on a defendant, a defendant's objection should be made before jurors arrive or after they have been excused from the court. State v. Crawford, 99 Idaho 87, 94, 577 P.2d 1135, 1142 (1978). Idaho cases hold that an objection is preserved for appellate review, without resort to fundamental error analysis, if either the specific ground for the objection is clearly stated or the basis of the objection is apparent from the context. E.g. State v. Sheahan, 139 Idaho 267, 277, 77 P.3d 956, 966 (2003). To raise an issue on appeal also requires an adverse ruling from the trial court that forms the basis for assignment of error. State v. Huntsman, 146 Idaho 580, 585, 199 P.3d 155, 160 (Ct. App. 2008).
We conclude the issue of the use of restraints in this case was preserved for appellate review. After Wright had been restrained, the district court held a brief hearing. During the hearing, the district court noted on the record that Wright had been placed in restraints, but the hearing primarily related to Wright's understanding of both the right to counsel and the disadvantages of proceeding pro se. After allowing Wright to discharge his attorney, the district court asked whether the State or Wright needed to address anything else before returning the jury. Wright asked to recall the State's first witness for cross-examination, and the district court granted the request. The district court then asked the bailiff to return the jury, but Wright interjected asking, "May I have these off, sir?" Wright argues, and the State does not deny, that the request referred to the restraints. From the context, it is apparent Wright was challenging, or objecting to, the use of restraints with the jury present. Furthermore, the request to remove the restraints required the district court to rule on the issue. Having already ordered the use of restraints, the district court gave a definitive answer on the request to reconsider its order: "No.
You show me after awhile here you're doing okay and I'll take them off . . . ." The district court made its position clear and no further objection by Wright was required in order to preserve the issue for appeal.
On appeal, a trial court's decision to place a defendant in restraints during a jury trial is reviewed for an abuse of discretion. State v. Miller, 131 Idaho 288, 292-93, 955 P.2d 603, 607-08 (Ct. App. 1997); see also Deck v. Missouri, 544 U.S. 622, 629 (2005). In looking at the trial court's decision to restrain a defendant, this Court must determine: (1) whether the lower court correctly perceived the issue as one of discretion; (2) whether the lower court acted within the boundaries of such discretion and consistently with any legal standards applicable to the specific choices before it; and (3) whether the court reached its decision by an exercise of reason. Miller, 131 Idaho at 292, 955 P.2d at 607. Wright contends the district court abused its discretion when it ordered that he be placed in restraints in three ways. First, there was no description of the incident that took place outside of the courtroom and no finding by the district court that the restraints were necessary for safety concerns or the preservation of judicial decorum. Wright asserts the use of restraints could permissibly be ordered only after an evidentiary hearing. Next, Wright argues that even if the use of restraints was justified, the district court erred by informing the jury that Wright was in restraints. Finally, Wright urges that the district court erred by not using the least restrictive and the least visible restraints available.
1. Failure to provide an evidentiary hearing or make a record
"[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." Deck, 544 U.S. at 629; see also Estelle v. Williams, 425 U.S. 501, 505 (1976) (recognizing shackles should only be used when necessary to control a defendant); Illinois v. Allen, 397 U.S. 337, 343-44 (1970) (holding a defendant may be restrained to maintain the decorum in a courtroom). A criminal defendant may be restrained during trial only in the "presence of a special need." Deck, 544 U.S. at 626. Interpreting this, the Idaho Supreme Court held the Due Process Clauses of both the United States and Idaho Constitutions prohibit visibly restraining a criminal defendant at trial unless "overriding concerns for safety or judicial decorum predominate." Crawford, 99 Idaho at 96, 577 P.2d at 1144. Therefore, any use of restraints must be based upon a finding that they are necessary. Id. at 98, 577 P.2d at 1146; State v. Hyde, 127 Idaho 140, 147, 898 P.2d 71, 78 (Ct. App. 1995). Using restraints on a defendant during trial is reversible error if the trial judge fails to make a finding that the restraints ...