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Shackling – Presence of Guards

State v. Jeffrey T. Turner, 2011AP413-CR, District 4, 11/3/11

court of appeals decision (1-judge, not for publication); for Turner: Cody Wagner; case activity

The trial court erred in failing to make a sua sponte inquiry into necessity for shackling Turner during his jury trial. Although the court of appeals recently held that a trial court has no such duty to inquire, where the restraints are hidden from view, State v. Miller, 2011 WI App 34, ¶11, 331 Wis. 2d 732, 797 N.W.2d 528. However, that case is distinguishable: “Turner’s restraints were chains attached to his ankles and wrists.  Turner’s restraints were easily visible.  Accordingly, Miller is not applicable,” ¶11. Turner nonetheless suffered no prejudice, given judge’s effort to make sure restraint weren’t visible and lack of evidence any jurors actually saw the restraints, ¶¶7-12. State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995) (failure to establish on record reasons for restraints erroneous but not prejudicial because judge took affirmative steps to make sure they weren’t visible to jury) and Flowers v. State, 43 Wis. 2d 352, 168 N.W.2d 843 (1969) (defendant must show that restraints prejudiced him), followed.

The court separately rejects Turner’s similar argument with respect to the presence of guards behind him while he testified:

¶14      Turner has presented no evidence that he ever made an objection to the guards’ presence behind him during his testimony at trial.  In fact, it was the State who raised the issue of the necessity of guards at trial.  Further, the record provides no information relating to the proximity of the guards to Turner during his testimony or their demeanor, and Turner has made only conclusory allegations that their presence was prejudicial to him.  Because Turner has not developed his argument nor provided evidence necessary to establish the facts required to determine whether the circuit court erred, we refuse to exercise our discretion in reviewing this issue at this time.  See Flowers, 43 Wis. 2d at 363.

 

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