Appeal from the Circuit Court of Lee County. No. 10-CF-123 Honorable Ronald M. Jacobson,Judge, Presiding.
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Hutchinson concurred in the judgment and opinion.
¶ 1 Defendant, Jack D. Harding, appeals from his conviction of domestic battery (720 ILCS 5/12-3.2(a)(1) (West 2008)). He contends that it was plain error for the court to hold a bench trial while he appeared shackled and in prison attire, without having held a hearing under People v. Boose, 66
Ill. 2d 261, 265 (1977). The State contends that the error was invited when defense counsel sought only to have one or both hands unshackled and the court agreed. In the alternative, the State contends that the evidence was not closely balanced under the first prong of the plain-error test. We determine that the error was invited, foreclosing plain-error review. Accordingly, we affirm.
¶ 3 On May 19, 2010, defendant was charged with two counts of domestic battery. Count I alleged that he made physical contact of an insulting or provoking nature with his wife, Karen Harding. Count II alleged that he caused her bodily harm. Bail was initially set at $5,000, but it was lowered at a later hearing, with the condition that defendant stay away from his wife and wear a monitoring bracelet. Defendant never posted bail.
¶ 4 On August 3, 2010, a bench trial was held. Defendant appeared, wearing prison attire and with his legs and hands shackled. Before trial, defendant's counsel told the court, "I am requesting the Defendant, in order to participate meaningfully in the trial, be allowed to have his hand shackles removed. He can keep his feet shackles on and that I be permitted to hand him this pen." The court asked the bailiff for an opinion on the matter, and he said that he had discussed the matter with counsel and would not have a problem if one hand were freed. The court then agreed and allowed one hand to be freed. There was no objection to freeing only one hand or to the leg shackles or prison attire. At trial, defendant was identified by several witnesses as the person wearing "black and white stripes" or "the jumpsuit.
¶ 5 Defendant's wife testified that, on May 14, 2010, she went with defendant to a bar in Dixon, Illinois, where she drank beer and shots of tequila. She did not remember leaving the bar, but remembered falling on her knees and waking up on her back in a parking lot.
¶ 6 Nicholas Von Schrott, a paramedic, testified that he was at the bar that night and witnessed an altercation in the parking lot. He stated that he had an unobstructed view of defendant shouting at his wife for about 10 seconds, and then he saw defendant punch his wife in the face with a closed fist, causing her to fall to the ground on her back. Von Schrott then stepped in front of defendant, and other bystanders assisted him in moving defendant away from his wife. Von Schrott next attended to defendant's wife, who he said was moaning and still lying on her back.
¶ 7 In a May 15, 2009, statement to police, Von Schrott said that, after defendant punched his wife, causing her to fall to the ground, defendant jumped on top of her and punched her again on the back of the head. At trial, Von Schrott said that his statement to police would be the most accurate, because his testimony at trial was based on his recollection after many months had passed. Von Schrott also could not recall whose vehicle he arrived in, how many bars he went to, whom he drank with, or whom he rode home with. Von Schrott admitted that he had been drinking that evening, but he also stated that he did not drink to the point of intoxication and that he would have been comfortable driving.
¶ 8 Scott Douglas Romine, a paramedic who was with Von Schrott at the bar, testified that he arrived after the altercation between defendant and his wife and saw Von Schrott telling defendant to get back, while defendant tried to push through a crowd of people toward his wife. Romine described defendant's demeanor as confrontational and aggressive.
¶ 9 Officer Chris Plancho of the Dixon police department testified that he responded to a call about an altercation in a parking lot and found defendant's wife on the ground on her stomach. She had dirt on her shirt, arms, and face and was crying and smelled of alcohol. Plancho testified that he gave defendant's wife a ride home and observed that she was heavily intoxicated and staggering. Plancho did not observe any red marks on her or any bruising or injuries. Another officer arrested defendant, who denied that he struck his wife.
¶ 10 After the close of the State's case, the court granted defendant's motion for a finding in his favor on count I. After trial, the court found him guilty of count II. In doing so, the court stated that the case "rises or falls on Mr. Von Schrott's testimony," as he was the only person who testified that defendant punched his wife. The court specifically expressed concern that there were discrepancies in Von Schrott's testimony, and it said that there were "serious concerns" about the accuracy of his memories. Ultimately, however, the court decided that it believed Von Schrott's testimony that defendant punched his ...