State v. Osborn

                                       102

          Submitted June 11, reversed and remanded October 13, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    ROXANNE CHAIX OSBORN,
                       Defendant-Appellant.
                     Coos County Circuit Court
                       19CR37140; A172692
                                    

     Defendant was convicted of first-degree forgery, ORS 165.013 (Count 1) and
first-degree criminal possession of a forged instrument, ORS 165.022 (Count 2).
On appeal, she argues, among other contentions, that the trial court erred
when it applied an incorrect legal standard when ordering that she be physically restrained in court. The state counters that she failed to preserve that
argument and that the Court of Appeals should not address it on the merits.
Held: Defendant preserved the issue, the trial court erred in its application of the
standard for use of a restraint, and the error was not harmless.
    Reversed and remanded.



    Martin E. Stone, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    ORTEGA, P. J.
    Reversed and remanded.
Cite as 

 (2021)                                                 103

           ORTEGA, P. J.
         Defendant was convicted of first-degree forgery,
ORS 165.013 (Count 1) and first-degree criminal possession
of a forged instrument, ORS 165.022 (Count 2). The jury
was nonunanimous on Count 1 and unanimous on Count 2.
Defendant appeals, raising five assignments of error. We
reject her second and third assignments of error without
further written discussion. Her first assignment of error
asserts that the trial court erred when it applied the incorrect legal standard when ordering that she be physically
restrained in court. The state counters that she failed to
preserve her argument and that we should not address it
on the merits. We conclude that defendant preserved the
issue and that the trial court erred in its application, and
we conclude that the error was not harmless. Accordingly,
we reverse and remand on that basis and do not reach defendant’s assignments of error based on the nonunanimous
jury instruction and verdict.1
         We begin by addressing the first assignment of error.
The charges in this case arose from an incident where defendant was reported for attempting to use a counterfeit $100
bill at a Dairy Queen in Coos County. Before trial, defendant raised the issue of physical restraints in the courtroom
and argued in her motion in limine that she objected “to any
future shackling in public or in court,” asserting that the
use of any shackles was unconstitutional. In response, the
state objected
    “to any exceptions being made regarding the shackling of
    the defendant except for a jury trial. … The Honorable
    Judge Richard Barron, former presiding judge of the Coos
    County Circuit Court, has previously ruled that such cases
    [out] of the Ninth Circuit regarding prisoner shackling are

    1
       In her fourth and fifth assignments or error, defendant argues that the trial
court erred in instructing the jury that it could reach a nonunanimous verdict
and in accepting a nonunanimous verdict on Count 1. The state concedes that the
trial court erred by instructing the jury that it could reach nonunanimous verdicts and by receiving a nonunanimous guilty verdict on Count 1 and that Count 1
should be reversed and remanded as a result. However, the state asserts that the
trial court’s error does not require reversal of the jury’s unanimous guilty verdict
on Count 2. The state is correct in its analysis. State v. Flores Ramos, 

,

 (2020). However, because we reverse and remand for a new trial on
other grounds, we do not address those arguments.
104                                             State v. Osborn

   not binding on this court. Therefore, the defendant is not
   entitled to any treatment different from any other inmate
   in the Coos County Jail’s custody.”
The court briefly addressed defendant’s argument at a pretrial hearing, noting that she would “not be restrained at
all during the trial” and that the jury was “not going to see
restraints.” Shortly after that determination by the trial
court, defense counsel informed the court that defendant
would not be called as a witness.
         On the day of trial, defendant was brought into the
courtroom in a leg restraint that limited her ability to bend
her knee. She was able to sit and stand without noticeable
difficulty, and the restraint was concealed by her clothing.
Nevertheless, she objected to the restraint and moved for
a mistrial following voir dire. She indicated that she could
not wear what she had brought to wear because it showed
the leg restraint and revived the argument asserted in her
motion in limine “that a leg brace even one that’s covered up
by clothing is a violation of [United States v. Sanchez-Gomez,

 (9th Cir 2017), vac’d and rem’d, 

,

 (2018)].” Defendant also cited Taylor v.
Kentucky, 

, 

, 

 (1978),
stating:
   “We must guard against any gradual erosion of the principle it presents rather in practice or appearance. This principle safeguards our most basic Constitutional liberties
   including the right to be free from unwarranted restraints,
   cites, [Deck v. Missouri, 

, 

, 

 (2005)]. I’m asking that [defendant] not be
   required to wear a leg brace restraint in the courtroom[.]”
The state renewed its response to defendant’s motion in
limine and concluded that the case law cited by counsel conflicted with Coos County precedent. The court responded,
“I told them not to shackle her[ ]” but inquired about the leg
restraint. The courtroom deputy responded,
      “It’s a security device that we use whenever we have an
   individual who is either facing prison time or is currently
   incarcerated or in prison. It limits their mobility so that
   they aren’t able to attempt to escape and it’s concealed.
      “…
Cite as 

 (2021)                             105

      “It’s an alternative to where there’s no shackles, no
   showing, no prejudice to the jury.”
         After hearing the deputy’s explanation, the court
denied defendant’s motion for mistrial and her motion to
have the leg restraint removed. The court determined that
it was not going to take any further action and noted for
the record that defendant did not have any shackles on her
hands, that it had not noticed any inability to stand, that
movement was not restricted, that the leg restraint was not
visible to the jury, and that it did not impede defendant’s
participation in the trial.
         Later in the trial, the court conducted a colloquy
regarding defendant’s decision not to testify. It explained
that the decision must be defendant’s and inquired whether
anyone had forced or pressured her not to testify. She
responded that it was her decision and that no one had
forced or pressured her into the decision.
         We begin our analysis with the question of preservation. Defendant contends that she preserved an objection
to the use of restraints when she asked not to be restrained
in the courtroom before trial. Specifically, she asserts that
she argued that the use of restraints during a criminal trial
is unconstitutional, and cited cases that provided the proper
analysis for addressing the due process issue under federal
law and the United States Constitution; she argues that
those arguments, in the context of the state’s response and
the court’s ruling, were sufficient to preserve her appellate
argument that the trial court abused its discretion when it
authorized the use of restraints by means of the wrong legal
evaluation. She maintains that the state was required, in
response to her objections, to create a record to justify the
use of restraints and that it failed to do so.
         In response, the state contends that defendant’s
objections were insufficient to preserve the argument she
now makes on appeal because they were general objections
that did not mention the need for factual findings or further
development of a record to show that she posed an immediate and serious risk of dangerous or disruptive behavior
and that the leg restraint was the least restrictive means to
mitigate that risk. We conclude that defendant’s arguments
106                                            State v. Osborn

were sufficient to satisfy the policies underlying the preservation requirements.
         The general requirement that an issue must first
be presented to the trial court to be considered on appeal is
well-settled. See, e.g., State v. Laundy, 

,

 (1922); ORAP 5.45(1) (“No matter claimed as
error will be considered on appeal unless the claimed error
was preserved in the lower court[.]”). The preservation rule
is a pragmatic one that “gives a trial court the chance to
consider and rule on a contention, thereby possibly avoiding
an error altogether or correcting one already made, which in
turn may obviate the need for an appeal.” Peeples v. Lampert,

, 

 (2008). The rule also ensures
fairness to opposing parties by requiring that “the positions
of the parties are presented clearly to the initial tribunal”
so that “parties are not taken by surprise, misled, or denied
opportunities to meet an argument.” Davis v. O’Brien, 

, 

 (1995).
         While raising a specific argument may be significant to our court, what is essential is that the issue is
raised. See State v. Weaver, 

, 

 (2020).
Moreover, “[p]recisely what suffices to ‘present clearly’ a particular position … is not something that can be explained
by a neat verbal formula.” State v. Walker, 

,

 (2011) (emphasis added). Ultimately, preservation will turn on whether the court concludes that the policies underlying the rule have been sufficiently served. 

         In this case, the underlying policies were sufficiently
served. Defendant relied on federal due process law, which
suffices to raise a due process issue and implicates all this
court’s due process case law on the subject. Defendant raised
the issue twice, first in her memorandum in support of her
motion in limine, after which the trial court ruled that she
would not be restrained during trial. She raised the issue a
second time after voir dire, and both times argued that any
shackling in the courtroom would be unconstitutional, relying on Sanchez-Gomez, a case which held that due process
was violated by a district-wide policy of routinely shackling
all pretrial detainees without providing a particularized
basis, such that a compelling government purpose would be
Cite as 

 (2021)                              107

served and that shackles are the least restrictive means for
maintaining security and order in the courtroom. 

.
         Additionally, the grounds for defendant’s second
objection were apparent to the trial court from the context. The legal standard regarding the use of shackles or
restraints in court is clearly established; as discussed below,
there is an extensive body of Oregon case law addressing
those concerns, along with the federal case on which defendant relied, and the trial court’s statements indicate that it
understood the basis of defendant’s objection. We conclude
that defendant’s arguments gave the court and the state a
sufficient opportunity to meet and consider the issue.
         We turn to the merits. Defendant argues that the
trial court violated her constitutional rights by requiring
her to wear a leg restraint without a record to support the
requisite findings that she posed an immediate and serious risk of dangerous or disruptive behavior and that the
restraint was the least restrictive means to mitigate any
such risks. She maintains that the error was not harmless
and that her decision not to testify does not demonstrate
that the restraint did not hinder her participation in her
trial or affect her decision whether to take the stand as a
witness. The state counters that any error was harmless
because (1) the leg restraint was not visible and so could not
have impinged on the presumption of innocence or the dignity of the proceeding; (2) the record does not reflect that the
restraint affected defendant’s decision regarding whether to
take the stand as a witness; and (3) there is little likelihood
that the restraint inhibited her ability to consult her attorney. We conclude that the trial court erred and that any
error was not harmless.
        This court reviews a trial court’s order requiring that a defendant wear a restraint during trial for an
abuse of discretion. State v. Washington, 

,

 (2014), cert den, 

 (2014). Oregon
has long recognized the “right of an accused to be free from
physical restraint during a criminal trial.” State v. Wall,

, 

 (2012), rev den, 

 (2013). That right “has common-law and constitutional
108                                             State v. Osborn

underpinnings.” 

 “Specifically, physically restraining
a defendant implicates Article I, section 11, of the Oregon
Constitution and the Due Process Clause of the Fourteenth
Amendment to the United States Constitution.” 

         That right, however, is not absolute. A trial court
has the discretion to order a defendant to wear restraints if
there is evidence of an “immediate and serious risk of dangerous or disruptive behavior.” State v. Moore, 

, 

 (1980). To exercise that discretion,
the court must first make a record of the relevant information it has received and evaluated and then must make an
independent determination that restraint is justified. State
v. Kessler, 

, 

 (1982). Even if
restraints are not visible to the jury, the state must adduce
evidence that would permit the court to make a determination of risk. See Wall, 

. We examine the
trial court record to determine if there is evidence providing a particularized basis to require a defendant to wear
restraints. 

.
          Here, the record does not provide such a particularized basis to support the court’s exercise of discretion.
The court made no inquiry into defendant’s past criminal
history or any basis for concluding that she posed any risk.
Instead, the court approved use of the leg restraint based
on the deputy’s explanation that leg restraints were used
“whenever” a defendant was incarcerated or facing a prison
sentence and his observation that the restraint was concealed by defendant’s clothing and did not pose obvious difficulty to her sitting and standing. That explanation did not
establish a basis for finding that defendant posed a risk, and
the trial court’s uncritical acceptance of it did not reflect an
independent determination that restraint was justified. See

 (“Although a sheriff’s deputy … may provide helpful
and necessary information in order to assist in the assessment of the risk posed by an unrestrained defendant, the
trial court may not simply accept the conclusions of others;
it must make an independent determination that restraint
is justified.”). Moreover, the state’s reliance on a policy treating all jail inmates the same did not support the court’s
exercise of discretion to allow use of a restraint, given that
the court’s determination must be based on an assessment
Cite as 

 (2021)                               109

of risks posed by a particular defendant. Accordingly, the
trial court abused its discretion in allowing use of the leg
restraint.
          We turn to the question of whether the trial court’s
error was harmless. Under the Oregon Constitution, an
error is harmless if there is little likelihood that it affected
the verdict. State v. Davis, 

, 

 (2003).
Under the federal constitution, the state bears the burden
to prove that the error was harmless beyond a reasonable
doubt. State v. Walton, 

, 

 (1991);
see also Deck, 

 (applying that rule in the
shackling context and citing Chapman v. California, 

, 

, 

 (1967)). In considering whether such error can be harmless, we keep in mind
three interests protected by the rule prohibiting the use of
restraints: the jury’s fact-finding function; the defendant’s
right to participate in her own defense; and the dignity of
the judicial process. State v. Guzek, 

, 

 (2015) (citing Deck, 

). We have previously held that “the right to remain unshackled is based
on considerations beyond the potential for jury prejudice
including inhibition of free consultation with counsel.” State
ex rel Juv. Dept. v. Millican, 

, 

 (1995). The rule also considers the effect such restraints
have upon a defendant’s decision to take the stand. Kessler,

. Additionally, the “ ‘removal of physical
restraints is also desirable to assure that every defendant
is … brought before the court with the appearance, dignity, and self respect of a free and innocent [person].’ ” 

(quoting People v. Duran, 16 Cal 3d 282, 290, 127 Cal Rptr
618, 

, 

 (1976)). We also have stated
that restraint of a defendant during trial without substantial justification results in manifest prejudice. State v. Glick,

, 

 (1985); State v. Schroeder, 

, 

, rev den, 

 (1983).
         Here, we conclude that the state did not prove that
the error was harmless beyond a reasonable doubt. The
record regarding this issue is sparse. Both parties agree
that the leg restraint was not visible to the jury, and the
record shows that defendant decided not to take the stand
shortly after the court’s initial ruling that she would not be
110                                           State v. Osborn

restrained during trial. Defendant confirmed her decision
later, after the court authorized the leg restraint, which,
in the state’s view, reflects that her decision not to testify
was not affected by the authorization of restraints—but the
record does not establish beyond a reasonable doubt that
that was the case, particularly given that defendant was
unable to wear the clothes she brought for trial because they
did not conceal the leg restraint.
          Moreover, although the state argues that defendant
was not inhibited from participating in trial and consulting
her counsel, there is no evidence in the record demonstrating that assertion beyond a reasonable doubt. The record
reflects that the restraint interfered with defendant’s ability
to bend her knee. The trial court stated that defendant was
able to stand and sit and consult with her attorney without
noticeable interference, but that was an observation made
after only voir dire, and not after defendant had to attend
an entire trial in a restraint that interfered with ability
to bend her knee, during which she was likely required to
stand, sit, and consult with her attorney many times. We
also reiterate that defendant was unable to present herself
to the jury as she intended, because she could not wear the
clothes she wanted and hide the restraint from the jury—
that is, if defendant had presented herself as she intended,
the restraint would have been visible to the jury. We will not
conclude that the error here was harmless based on speculation from an insufficient record. Under the federal rule, the
state is required to prove the error was harmless beyond a
reasonable doubt, and it has not done so. See, e.g., Kessler,

 (reversing and remanding for a new trial
when the record was insufficient to determine if the error in
shackling the defendant was harmless beyond a reasonable
doubt).
         We also note that we are deeply troubled that the
trial court allowed a blanket restraint rule to be employed
in the courtroom, without any concerns particularized to
defendant, and that that rule was supported by the state,
when such a rule is manifestly unconstitutional. Wall, 

 (“[F]or purposes of the threshold showing
that is required before restraints may be lawfully imposed,
the distinction between visible and nonvisible restraints is,
Cite as 

 (2021)                           111

indeed, one without a difference.”). Employing a manifestly
unconstitutional blanket restraint rule impinges on the dignity of judicial proceedings and the presumption of a defendant’s innocence, whether or not it was obvious to the jury
that defendant was in restraints. Defendant should have
been afforded the appearance, dignity, and self-respect of a
free and innocent person to which she was entitled.
        Reversed and remanded.