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Court of appeals holds defendant can be forced to choose: wear a stun belt or don’t attend your trial

State v. Danny L. Benford, 2017AP2520-CR, 3/26/19, District 3 (not recommended for publication); case activity (including briefs)

The Eau Claire County Sheriff Department’s policy is to require all defendants appearing for trial to wear a stun belt under their clothing. Benford did not want to wear one because he didn’t trust the sheriff’s not to zap him for no good reason. The trial court conducted an inquiry into the need for the stun belt, concluded it was necessary, and found no other suitable alternative to it.

Benford wore the stun belt the 1st day of trial. He didn’t like it and objected. The court told him he had a choice: either wear the stun belt or don’t attend the 2nd and 3rd days of his trial. Benford chose the latter. On appeal he challenged the stun belt order and argued that the trial court denied him his right to be present at trial.

Stun belt order.  A trial court has a non-delegable duty to determine the appropriate security measures for the courtroom. It cannot order a defendant to wear a stun belt or shackles just based “sheriff’s policy.” See State v. Grinder, 190 Wis. 2d 541, 527 N.W.2d 326 (1995).  Factors the court should consider include: the nature of the charges, the defendant’s background, the security risks in the courtroom. Id. at 552. The court of appeals held that the circuit court made the appropriate inquiry. Specifically:

¶16 The trial court ultimately concluded it was appropriate to order that Benford wear a stun belt at trial. The court based its conclusion on the following findings: (1) the charges against Benford were the result of “violent and extremely dangerous behavior”; (2) Benford’s young age and physical attributes would make it “[p]hysically … very difficult” for courtroom personnel to subdue Benford if he became violent; (3) there were no alternative restraint methods available that would “protect” the courtroom as effectively as a stun belt; (4) the layout of the courtroom prevented a bailiff from responding “as quickly as the stun belt”; (5) the letters Benford sent the court “indicate[d] a high level of defiance or a high level of potential disruption” if Benford became dissatisfied with the trial proceedings; and (6) shackling Benford would be unduly prejudicial.

Benford faulted the trial court for not considering alternatives to a stun belt. However, the court of appeals held: “the relevant inquiry here is not whether the court adequately considered alternatives to a stun belt—instead, it is whether the court’s conclusion that a restraint was necessary to maintain order, decorum, and safety in the courtroom was an erroneous exercise of the court’s discretion.” Opinion, ¶27 (citing State v. Ziegler, 2012 WI 73, ¶84, 342 Wis. 2d 256, 816 N.W.2d 238). The court of appeals pointed out that the circuit court actually did consider–and rejected–alternatives to stun belts.

Right to be present at trial. A defendant has a right to be present at trial under the 6th Amendment and §971.04. But he can waive those rights by conduct or express waiver. State v. Washington, 2018 WI 3, ¶27, 379 Wis. 2d 58, 905 N.W.2d 380. On appeal Benford argued that his express waiver of his right to be present at the 2nd and 3rd days of trial was not voluntary. Rather, it was the result of the trial court’s order requiring him to wear a stun belt. The court of appeals rejected this argument based upon its incorrect premise–that trial court’s stun belt order was somehow erroneous. It wasn’t. Opinion, ¶33.

¶34 Properly framed, the trial court’s order presented Benford with a fair and reasonable choice: decide to attend the trial wearing a stun belt to ensure the order, decorum and safety of the courtroom or refuse to wear the stun belt and be tried in absentia. When a defendant is presented with a choice between fair and reasonable alternatives, the option he or she chooses is not the result of legal coercion. See Craker v. State, 66 Wis. 2d 222, 229, 223 N.W.2d 872 (1974). In other words, a choice made between fair and reasonable alternatives is voluntary and self-imposed.

. . .

¶37 Moreover, even assuming, for the sake of argument, that the psychological effects of the stun belt overwhelmed Benford on the second day of trial, that does not make the trial court’s requirement that he wear a stun belt to attend trial an “unreasonable alternative.” Again, the court’s order that Benford be required to wear a stun belt to maintain the order, decorum and safety of the  courtroom was not an erroneous exercise of the court’s discretion. Therefore, regardless of Benford’s subjective concerns about the stun belt, the requirement that Benford wear the device to attend trial was a fair and reasonable alternative to Benford choosing not to wear the device and being tried in absentia. Consequently, Benford’s waiver of his right to be present at trial was voluntary, not the result of legal coercion. See Craker, 66 Wis. 2d at 229.

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