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Denial of fair trial – restraint of defendant during trial; sentencing – reliance on inaccurate information; new factor

State v. Richard Wade Shirley, 2012AP263-CR, District 1, 1/29/13; court of appeals decision (not recommended for publication); case activity

Denial of fair trial – restraint of defendant during trial

Defendant forfeited claim that he was deprived of a fair trial because at least one juror saw he was shackled in the court room: “Not only does the record show that Shirley failed to strike the one juror that the record demonstrates saw the restraints, it also shows that no object to the shackling was raised until Shirley was about to take the witness stand. If a defendant has an objection he must raise it when there is still an opportunity for the court to remedy the situation.” (¶14). Further, Shirley did not show prejudice due to the shackling, as the record indicates only one juror saw the restraints and precautions had been taken to hide the restraints from the jury’s view. (¶15). Finally, the record does not show Shirley’s ability to testify was hampered by his being shackled while on the witness stand. (¶17).

Though Shirley gets no relief, the court of appeals notes the trial judge’s failure to explain why Shirley had to be shackled during trial; instead, the judge just deferred to the policy of the sheriff’s department, contrary to a long line of cases requiring the court to exercise its discretion in deciding whether to restrain a defendant (recent example: State v. Miller, 2011 WI App 34, ¶7, 331 Wis. 2d 732, 797 N.W.2d 528). (¶¶13, 17) .

As for the lack of prejudice, it is true only one potential juror (No. 34) mentioned the shackles during voir dire; but it appears he referred to it in the presence of the rest of the panel. (¶¶3-4). While Juror No. 34 said during individual voir dire that he had not mentioned it to any other jurors, counsel declined to question other jurors about what they had seen—or, more to the point, whether they’d heard Juror No. 34’s reference to the shackles. Finding a lack of prejudice based on what other jurors saw as opposed to heard may, then, be a bit myopic.

Sentencing – reliance on inaccurate information; new factor

A claim the Department of Corrections cannot provide adequate medical care to Shirley, an amputee, is not grounds for either resentencing or a sentence modification because sentencing court did not rely on the quality of prison medical treatment in making its sentencing decision. The standards for resentencing based on inaccurate information (State v Tiepelman, 2006 WI 66, 291 Wis. 2d 179, 717 N.W.2d 1) and new factor sentence modifications (State v. Harbor, 2011 WI 28, 333 Wis. 2d 53, 797 N.W.2d 823) are cited and applied.

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