Appeal from the Circuit Court of Will County; the Hon. Michael
A. Orenic, Judge, presiding.
PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
On February 2, 1980, the defendant, Charles Whitson, was charged by indictment in the circuit court of Will County with four counts each of violation of enforcement of discipline, forcible detention, intimidation, unlawful restraint and armed violence. (Ill. Rev. Stat. 1979, ch. 38, pars. 1003-6-4(a), 10-4(a)(2), 12-6(a)(6), 10-3(a), 33A-2.) Twelve other persons were named as defendants in the same indictment. The four counts charging intimidation were dismissed prior to trial. Following a bench trial, the defendant was convicted of four counts of unlawful restraint and sentenced to four concurrent extended terms of six years of imprisonment to be served consecutive to the term he was already serving.
The facts giving rise to these charges have been set out clearly and at length in the briefs filed before this court and will, therefore, not be reiterated here except as they directly relate to a particular issue.
• 1 We turn now to the first issue raised by the defendant: whether the court erred in requiring him to remain in shackles during the pretrial proceedings. With respect to this issue, the defendant argues that the court required him to remain shackled not because of a concern for safety but because the Department of Corrections would have withdrawn its supervisory personnel had the defendant been freed from all restraint.
To this argument of the defendant, the State responds, first, that the defendant waived the issue by failing to object, by objecting on different grounds at trial, and by failing to include the issue in his post-trial motion. Alternatively, the State argues that the shackling was proper and within the discretion of the trial judge. Finally, the State argues that, should the shackling of the defendant during pretrial proceedings be determined to be improper, the error was a harmless one.
Preliminarily, we note that the defendant was barred from most of the pretrial proceedings because of the prior misconduct of the co-defendants as a group. We also note that the incident out of which the charges arose involved the takeover of the orientation unit of the Stateville Correctional Center by the defendant and his co-defendants, who were at the time all residents of the maximum security confinement unit and death row unit at Stateville.
Second, we note that although this defendant, Charles Whitson, did not object to the shackling on the grounds now raised, namely that it interferes with his ability to communicate with counsel, affronts the dignity of the court, and allows the Department of Corrections to usurp the judicial function, nonetheless, he did object. In view of the inherent complexity of a trial of this type, involving 13 defendants, we believe that the objection was sufficiently made.
The objection was not, however, renewed in the post-trial motion of the defendant. The State had pointed out, and we agree, that the failure of the defendant to include an alleged error in a post-trial motion waives the error (People v. Armstrong (1983), 111 Ill. App.3d 471, 444 N.E.2d 276, 281-82); however, we find this question to be sufficiently significant that we elect to consider it under the doctrine of plain error. 87 Ill.2d R. 615.
• 2 We are, therefore, confronted with the question of whether the court's decision that the defendant remain shackled in the courtroom during those pretrial proceedings at which he was present was an abuse of discretion. We believe that it was not.
In People v. Boose (1977), 66 Ill.2d 261, 268, 362 N.E.2d 303, 306, our supreme court adopted the position that a trial judge may not employ a general policy of imposing restraints on defendants who are prison inmates charged with a new offense absent a showing of necessity in the record. Boose involved a defendant who was required to appear shackled before a jury at his competency hearing; the only reason given by the court for the restraint was the nature of the crime with which he was charged.
In Boose, the court enumerated factors which might properly be considered by the trial judge in deciding that a defendant must remain shackled. Among these factors are: (1) the seriousness of the charge; (2) the defendant's physical, mental and emotional temperament and character; (3) the defendant's prior record; (4) past or present attempted escapes; (5) threat of harming others or of causing a disturbance; (6) risk of mob violence or attempting revenge or rescue; (7) the observers in the courtroom; (8) the nature and physical security of the courtroom; and (9) the adequacy and availability of alternative remedies. People v. Boose (1977), 66 Ill.2d 261, 266-67, 362 N.E.2d 303, 305-06.
In the instant case, the pretrial proceedings began on February 19, 1980, and continued until jury selection had begun on October 26, 1982. On July 16, 1981, the court decided to hear the pretrial motions without the defendants present unless testimony was required. According to the court, this measure was necessary for security reasons, tear gas having been required the last time that all defendants were present in the courtroom. This procedure was modified on August 11, 1981, to allow individual defendants to be present during the arguments of their attorneys. However, the court required the defendants to remain shackled while they were in the courtroom during the pretrial proceedings.
On appeal, the defendant now argues that the trial judge allowed the Department of Corrections to usurp his authority regarding the determination as to the necessity for shackles in the courtroom. The argument of the defendant is based on the fact that a letter from the Director of the Department of Corrections was read into the record during the pretrial proceedings. In that letter, the Director indicated that "[i]n the event that it is ordered that the restraints be removed, the Department of Corrections would regretfully be compelled to decline to provide further courtroom supervision of the individuals" based upon "* * * the security needs of these particular inmates and their past behavior in court during these proceedings." The defendant argues that the court did not believe that the shackling was necessary but only yielded to pressure from the Department of Corrections. We disagree.
Although we agree with the defendant that shackling in the courtroom is to be avoided whenever possible, we nonetheless recognize that, under certain circumstances, restraints are essential. (In re Staley (1977), 67 Ill.2d 33, 37-38, 364 N.E.2d 72, 73-74.) In the instant case, although the trial judge at one point did indicate that he did not fear for his own personal safety, nonetheless he consistently expressed concern regarding the need to maintain courtroom security. In this context he specifically indicated that the Will County ...