¶1concurring in part and dissenting in part:
¶2Because I would affirm the trial court in its entirety, I dissent from that portion of the opinion which holds that it was plain error to require shackles in this case.
¶3The majority cites People v. Doss, 347 Ill. App. 3d 418, 807 N.E.2d 697 (2004), for the proposition that the shackling of a defendant without a Boose hearing always constitutes plain error which is not subject to waiver. This is an improper reading of Doss. Doss did not hold that it is always plain error to shackle a defendant without a Boose hearing. Rather, the shackling issue was reviewed under the plain error doctrine because we found the evidence closely balanced. Doss involved a “he said, she said” case where the defendant’s conviction rested upon the identification by the victim only. The defendant denied that it was he who committed the crime. To the extent that the Doss opinion can be read to stand for the proposition that shackling of the ankles without a Boose hearing is always reversible error, that can be laid on the shoulders of the relatively new and inarticulate appellate judge who authored the opinion. If shackling, ipso facto, deprives defendant of a fair trial, how can a few magic words by a trial judge at a hearing outside the jury’s presence change that? It strikes me as illogical to say that the shackling of a defendant without a Boose hearing is always plain error regardless of the facts of the case. If the shackling is so prejudicial that it deprives the defendant of a fair trial, then that effect cannot be altered by the mere fact that a trial judge chanted a few magic words at a hearing. Of course, our Illinois Supreme Court has never said that shackling always deprives the defendant of a fair trial.
¶4The evidence in this case is not closely balanced. Therefore, I find this case inappropriate for plain error review. Any claim of error was waived by defendant. I respectfully dissent from that portion of the opinion which reverses and remands the matter for a new trial.