2009AP3175-CR State v. Miller

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Criminal Procedure
Hidden restraints

A circuit court need not consider the necessity of a restraint that is not visible to the jury.

“First, we explicitly stated in Champlain that a trial court’s sua sponte duty is limited to the circumstances of that case. Id., ¶32. Champlain is a visible restraint case; the defendant’s armband was a ‘black, somewhat bulky, wrist-to-elbow sleeve’ that the jury had multiple opportunities to view because the defendant wore a short-sleeved polo shirt. Id., ¶29. Our prejudice finding was based primarily on our conclusion that the device ‘markedly set off the appearance of Champlain’s right arm fitted with the device from his bare left arm ….’ Id., ¶31. Thus, the visibility of the device was central to our decision.”

“Second, limiting a court’s sua sponte duty to visible restraints is consistent with the rationale for the general rule against restraining defendants at trial. As we have stated, the no-restraint rule is designed to prevent the jury from forming an opinion about the defendant’s guilt based solely on the fact that the defendant is restrained. See Cassel, 48 Wis. 2d at 624; Sparkman, 27 Wis. 2d at 96. There is little risk of prejudice if the jury cannot see the restraint. See Grinder, 190 Wis. 2d at 552-53 (circuit court’s erroneous exercise of discretion did not deny defendant a fair trial because ‘the court took adequate steps, in advance of any problems which might have occurred, to conceal the shackles from the view of the jury’); State v. Staples, 99 Wis. 2d 364, 374-75, 299 N.W.2d 270 (Ct. App. 1980) (trial court’s policy of keeping restraints from the jury’s view ‘sufficiently offsets any significant possibility of prejudice against the shackled defendant’).” Affirmed.

Recommended for publication in the official reports.

2009AP3175-CR State v. Miller

Dist. III, Brown County, Zuidmulder, J., Brunner, J.

Attorneys: For Appellant: Fite, Shelley, Madison; For Respondent: Zakowski, John P., Green Bay; Sanders, Michael C., Madison

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