Townsend v. State

Robert L. Brown, Justice, dissenting. I would affirm the convictions.

We tread on shaky ground when we second-guess a trial judge’s decision on security matters. We have, said as recently as 1990 that the use of restraints on a defendant was appropriate when dangerous conditions existed. See Clemmons v. State, 303 Ark. 265 , 795 S.W.2d 927 (1990); Terry v. State, 303 Ark. 271 , 796 S.W.2d 332 (1990). In both Clemmons and Terry, we weighed the prejudicial effect to the defendant occasioned by the use of restraints against the state’s interest in safety, security, and order. In Clemmons, the defendant was placed in leg irons with a deputy sheriff seated directly behind him. This was due to the defendant’s criminal record and the fact that he had injured his mother shortly’before the trial. He had also threatened the judge and was found to have a hidden metal plate in his shoe. We held that the protective measures were warranted.

In Terry, the defendant was disruptive and ignored the judge’s warning that he return to his seat. There was a scuffle in front of the jury, and the defendant was removed from the courtroom in handcuffs. He subsequently returned for trial and was convicted. Again, we upheld the use of the handcuffs under these circumstances.

The United States Supreme Court has recognized using restraints for unruly defendants where it is essential to maintain dignity, order, and decorum in the courtroom. See Illinois v. Allen, 397 U.S. 337 (1970). Our court has further held that it is not prejudicial per se for a defendant to be brought into the courtroom in handcuffs. See Hill v. State, 85 Ark. 77 , 685 S.W.2d 495 (1985); Johnson v. State, 261 Ark. 183 , 546 S.W.2d 719 (1977). In Johnson, for example, the handcuffs were used because the defendant was charged with escape from the penitentiary, and we affirmed their use. That is precisely the issue in the case before us.

Subsequent to Illinois v. Allen, supra, this court adopted Rule 33.1 of the Arkansas Rules of Criminal Procedure:

Defendants and witnesses shall not be subjected to physical restraint while in court unless the trial judge has found such restraint reasonably necessary to maintain order. If the trial judge orders such restraint, he shall enter into the record of the case the reasons therefor. Whenever physical restraint of a defendant or witness occurs in the presence of jurors trying the case, the judge shall upon request of the defendant or his attorney instruct the jury that such restraint is not to be considered in assessing the proof and determining the guilt.

The rule clearly leaves the issue of restraints to the discretion of the trial judge who is authorized to restrain as is reasonably necessary to maintain order in the courtroom.

In this case, Townsend was an inmate in the state penitentiary owing to a parole violation for a burglary conviction. Information was passed to the court’s bailiff that the defendant would escape. This concerned the trial judge, as it should have, and he opted to place Townsend, who was dressed in civilian clothes, in leg irons. He further offered to instruct the jury that this should have no bearing on its assessment of proof or its determination of guilt, as the rule provides. Defense counsel rejected this.

The case is a close one, and as trial judge I might well have placed Townsend in leg irons after he was seated at the table and with the jury out of view. But in close cases regarding security matters in the courtroom, the trial judge is in a better position to evaluate the potential for danger and disruption than this court on appeal. Here, the danger of escape by a man already incarcerated in the state penitentiary existed with the collateral risk of hostage-taking. Plus, the trial judge was informed that he intended to escape. The judge had no other choice than to take some precautions. I do not believe that he overstepped his bounds.

Corbin, J., joins.