Opinion
NO. PD-0042-24
05-08-2024
Paul GENNUSA, Appellant v. The STATE of Texas
Jani Maselli Wood, for Appellant.
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW FROM THE FIRST COURT OF APPEALS HARRIS COUNTY
Jani Maselli Wood, for Appellant.
Petition for discretionary review refused.
CONCURRING OPINION
Slaughter, J., filed a concurring opinion in which Richardson and McClure, JJ., joined.
"The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Coffin v. United States, 156 U.S. 432, 453, 15 S. Ct. 394, 403, 39 L.Ed. 481 (1895). In this case, the trial court failed to adequately protect Appellant’s presumption of innocence at trial when it permitted the Harris County Sheriff’s Office to place Appellant in shackles that were visible to prospective jurors during jury selection. The First Court of Appeals held that the "shackling error" was non-constitutional because none of the jurors saw the shackles at trial, and subsequently held that the error was harmless. Appellant contends, inter alia, that the error was constitutional because one of the prospective jurors who saw the shackles during jury selection was on the petit jury. However, Appellant forfeited that issue when he chose to proceed to trial with the juror who saw the shackles during jury selection. Consequently, I join in the Court’s decision to refuse Appellant’s petition for discretionary review. I write separately to emphasize how important it is that trial judges take measures at trial to preserve a defendant’s presumption of innocence.
I. Factual Background
As of June 23, 2022, the Harris County Sheriff’s Office had a policy and routine practice of keeping all "in custody" criminal defendants in shackles while they were in the courtroom. The practice was implemented in response to some past criminal defendants creating security risks, but it was not particularized to each defendant. In fact, the practice was so routine that the deputies working in the courthouse believed it to be "common knowledge."
In accordance with that routine practice, Appellant was shackled during jury selection at his trial for burglary of a habitation with intent to commit aggravated assault. While the parties were exercising their peremptory strikes, defense counsel became aware of the shackles, and told the trial court, "Judge, I was not aware that my client was shackled. So I told him to move seats, and it was only once he moved that I realized he was shackled. I’m not sure why, and I’m sure that that front row [of prospective jurors] saw."
The trial court noted that as a general rule, criminal defendants should not be shackled in front of the jury and asked his bailiff why Appellant was shackled. One of the courtroom deputies responded, "He’s in custody, Sir." The deputy went on to explain that Appellant "was blocked off from both angles so the jurors couldn’t see him." Both the trial court and defense counsel agreed that the shackles were not visible unless Appellant moved. Still, though, defense counsel objected to Appellant being in shackles, arguing that there was no adequate, particularized reason for shackling him in front of prospective jurors.
The trial court interviewed the prospective jurors asking if they saw the shackles when Appellant changed seats. Multiple prospective jurors acknowledged that they saw the shackles, including jurors number 2, 8, and 12. The trial court noted that the parties had stricken jurors number 2 and 8 with peremptory strikes, but Juror Number 12 remained unchallenged. When defense counsel asked Juror Number 12 whether seeing the shackles would influence his verdict, he answered, "no." Neither side struck him, and he was seated on the petit jury. After consulting with Appellant, defense counsel told the trial court that Appellant was "prepared to go forward with the jury that we have."
On the first day of the guilt-innocence phase of the trial, before the jury was seated, defense counsel re-urged her objection to Appellant being shackled. When the trial court asked the courtroom deputies why Appellant was still shackled, the deputies reiterated that it was their "policy." The trial court seemed to accept that explanation and refused to have the deputies unshackle Appellant, noting that Appellant "was seated in a position where the jury could not see that he was shackled." Nothing in the record suggests that any of the petit jurors saw the shackles during trial. However, the jury convicted Appellant, and sentenced him to 35 years’ imprisonment.
On direct appeal, the First Court of Appeals observed that the trial court permitted Appellant to be shackled at trial without making a determination that the shackles were justified by an adequate state interest. Gennusa v. State, No. 01-22-00519-CR, 2023 WL 5436395, at *3 (Tex. App.—Houston [1st Dist.] Aug. 24, 2023, pet. filed) (mem. op., not designated for publication). The court also noted that the only reason, apparent from the record, for shackling Appellant was the Sheriff’s policy of shackling at trial those criminal defendants who were "in custody." Id. The court determined that this policy and routine practice was an inadequate justification for shackling Appellant during the guilt-innocence phase of trial. Id. Consequently, the court held that the trial court abused its discretion. Id. Specifically, the court ruled that because none of the jurors perceived the shackles at trial, the trial court’s unjustified shackling of Appellant was non-constitutional error, in violation of the common law. Id at *4. The court went on to analyze the error for non-constitutional harm before finding it did not affect Appellant’s "substantial rights" and was thus harmless.
II. Discussion
The right of a criminal defendant to be present at trial, unbound by physical restraint, derives from two legal authorities: (1) the common law, and (2) the Due Process Clause. In both cases, the "routine shackling" of criminal defendants at trial, without adequate justification and a particularized finding by the trial court, is prohibited. However, unlike the common law right, the due process right is implicated only when there is a reasonable probability that the jury saw the shackles. That is because when jurors observe a criminal defendant in shackles, the presumption of innocence, which due process guarantees, is undermined. In the instant case, the court of appeals was correct to hold that the trial court’s shackling of Appellant during the guilt-innocence phase of trial was non-constitutional error, in violation of the common law, because none of the jurors saw the shackles during that period. The court of appeals was prevented from addressing the due process violation that occurred when prospective jurors observed Appellant standing in shackles during jury selection because Appellant forfeited that constitutional issue. But I address that issue here because it is critical that trial judges take measures to preserve a defendant’s presumption of innocence during jury selection and the guilt-innocence phase of trial. The visible use of shackles undermines that presumption.
A. The Common Law
The "ancient" common law rule, which this Court adopted in 1886, prohibits the "routine shackling" of criminal defendants at trial. See Bell v. State, 415 S.W.3d 278, 281 (Tex. Crim. App. 2013) (citing Rainey v. State, 20 Tex. App. 455, 472 (1886)). "Even when shackles are not visible to the jury … shackling a defendant during trial is non-constitutional error in violation of the common law unless it is necessary for a particular defendant in a particular proceeding." Ex parte Chavez, 560 S.W.3d 191, 202 (Tex. Crim. App. 2018). So, before the trial court allows a defendant to be shackled at trial, "the record must manifest the trial judge’s reasons for restraining [him]." Bell, 415 S.W.3d at 281. When the record fails to detail the grounds for restraint, the trial court errs. Id. In general, violations of this common law right are reviewed for non-constitutional harm. Id. at 283.
Deck v. Missouri, 544 U.S. 622, 626, 125 S. Ct. 2007, 2010, 161 L.Ed.2d 953 (2005) ("[I]t is laid down in our antient books, that, although under an indictment of the highest nature, a defendant must be brought to the bar without irons.") (quoting 4 W. Blackstone, Commentaries on the Laws of England 317 (1769)).
I agree with the court of appeals that the trial court’s unjustified shackling of Appellant at trial was non-constitutional error, in violation of the common law, because none of the petit jurors saw Appellant in shackles at that time. And while the court of appeals was prevented from addressing the issue of Appellant’s shackling during jury selection, I note here that this was constitutional error, in violation of the Due Process Clause, because one of the prospective jurors saw Appellant in shackles during jury selection and went on to serve on the petit jury to determine Appellant’s guilt.
B. The Due Process Clause
The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits the use of physical restraints on a criminal defendant that are visible to the jury at trial. Deck v. Missouri, 644 U.S. 622, 629, 125 S. Ct. 2007, 2012, 161 L.Ed.2d 953 (2005). There is an exception if the physical restraints are justified by an essential state interest that is specific to the particular trial. Id. In such a case, before the trial court allows a criminal defendant to remain shackled where there is a reasonable probability that petit jurors might see the shackles, the record must manifest the trial judge’s reasons for restraining him, and those reasons must support the finding that the shackling serves "an essential state interest." Id. at 634–35, 125 S. Ct. at 2015. When the record is silent as to the trial judge’s reasons for visibly restraining the criminal defendant, the tidal judge constitutionally errs, and the State bears the burden on appeal of proving beyond a reasonable doubt that the shackling error did not contribute to the jury’s verdict. Id.
The primary reason for the prohibition against the routine shackling of criminal defendants is to preserve the presumption of innocence. See id. (citing Estelle v. Williams, 425 U.S. 501, 503, 96 S. Ct. 1691, 1692, 48 L.Ed.2d 126 (1976)). Indeed, the use of visible shackles in front of the jury undermines the presumption of innocence by suggesting that the justice system believes the criminal defendant should be separated from the community. Id. (citing Holbrook v. Flynn, 475 U.S. 560, 569, 106 S. Ct. 1340, 1346, 89 L.Ed.2d 525 (1986)). Moreover, the routine shackling of a criminal defendant often comes with adverse consequences that cannot be shown from the trial transcript. Id. (citing Riggins v. Nevada, 504 U.S. 127, 137, 112 S. Ct. 1810, 1816, 118 L.Ed.2d 479 (1992)). Thus, the use of physical restraints on a criminal defendant at trial should be a "last resort." Id. (citing Illinois v. Allen, 397 U.S. 337, 343–44, 90 S. Ct. 1057, 1061, 25 L.Ed.2d 353 (1970)).
This Court also has long recognized the dangers of keeping a criminal defendant in shackles during a jury trial. For example, in 1886, this Court wrote:
When the court allows a prisoner to be brought before a jury with his hands chained in irons, and refuses on his application, or that of his counsel, to order their removal, the jury must necessarily conceive a prejudice against the accused as being, in the opinion of the judge, a dangerous man and not one to be trusted even under the surveillance of officers.
Rainey v. State, 20 Tex. App. 455, 472 (1886). Accordingly, we have said that when the trial court resorts to the use of shackles on a criminal defendant, it should take measures to obscure them from the jury’s view. Bell, 415 S.W.3d at 281; Chavez, 560 S.W.3d at 202. In so doing, the trial court minimizes the risk that the jury will see the shackles, and by extension, it minimizes the serious risk of the shackles undermining the fundamental presumption of innocence. See Bell, 415 S.W.3d at 281; Chavez, 560 S.W.3d at 202.
In the instant case, the trial court allowed the Harris County Sheriff’s Office to bring Appellant before prospective jurors in shackles without making a determination that the shackles were justified by an essential state interest. Indeed, the trial court gave no reason for the shackles—not even an inadequate one. The only reason given on the record for refusing to remove Appellant’s shackles was provided by one of the bailiffs, who cited the Sheriff’s policy and routine practice of keeping "in custody" criminal defendants shackled at all times in the courtroom. Even assuming that the trial court implicitly relied on the Sheriff’s policy as the reason for keeping Appellant in shackles, such a justification is woefully inadequate to constitute an essential state interest. Accordingly, the tidal court erred in refusing to order the bailiffs to remove Appellant’s shackles.
The next question is whether the shackling error in this case was constitutional or non-constitutional in nature. On that point, the record shows that multiple prospective jurors saw the shackles during jury selection. One of those prospective jurors, Juror Number 12, was selected for the petit jury. And it is worth noting that even though Juror Number 12 told the trial court that the shackles would not influence his verdict, there is a reasonable likelihood that he told other jurors about the shackles, which might have influenced their verdicts. Moreover, even assuming that Juror Number 12 kept his perception of the shackles to himself, the question of whether a shackling error is constitutional or non-constitutional error comes down to whether the jurors saw the shackles, not the extent to which the jurors saw them. See Deck, at 684, 125 S. Ct. at 2015. Ultimately, because at least one of the petit jurors at trial saw Appellant in shackles during jury selection, the trial court’s error is constitutional in nature. See id. Normally, then, the court of appeals would need to conduct a constitutional harm analysis, but in this case Appellant waived the constitutional error by agreeing to proceed to trial with the jury containing the juror who saw him in shackles during jury selection.
Although the trial judge instructed Juror Number 12 not to discuss the shackling conversation with the other jurors, there was nothing in the record suggesting that the trial judge instructed Juror Number 12 not to inform the other jurors that the defendant was shackled.
C. Forfeiture
When a criminal defendant fails to take measures to exclude prospective jurors he knows or suspects saw him in shackles during jury selection, he waives the complaint on appeal. See Garza v. State, 10 S.W.3d 765, 767 (Tex. App.—Corpus Christi 2000, pet. ref’d) ("[A]ppellant waived error by failing to question members of the jury panel for the purposes of excluding any members who may have viewed him in shackles."). In the instant case, Appellant knew that Juror Number 12 saw him in shackles during jury selection and knew that Juror Number 12 was to be seated on the petit jury. Yet, Appellant still informed the trial judge that "he [was] prepared to go forward with the jury that we have." Thus, not only did Appellant fail to take measures to exclude Juror Number 12 from the petit jury, he expressly consented to seat him. Consequently, Appellant cannot now complain that he was harmed by the fact that Juror Number 12 saw him in shackles during jury selection. See id.
See Garza v. State, 435 S.W.3d 258, 260 (Tex. Crim. App. 2014) (barring two narrow exceptions, "all errors—even constitutional errors—may be forfeited on appeal if an appellant failed to object at trial").
D. Application
Appellant forfeited the constitutional issue in this case, but the trial court could have avoided that error if it had taken measures to preserve Appellant’s presumption of innocence. The courtroom deputies in this case stated that the Sheriff’s shackling policy is so routine that they considered it to be "common knowledge." Assuming that to be true, the trial court, which exclusively hears criminal cases, should have been aware of the Sheriff’s shackling policy, and it should have inquired as to whether Appellant was shackled before jury selection began. That being said, once the trial court learned that Appellant was shackled, it should have ordered the bailiff to remove the shackles. If, however, there was a reason shackling was warranted, the trial court should have held a hearing and made particularized findings supporting the conclusion that the shackles were justified by an essential state interest. And if that was the case, the trial court would then need to take measures to help ensure that the shackles would remain obscured from the view of the prospective jurors.
III. Conclusion
In this case, the trial court committed both non-constitutional and constitutional error by allowing Appellant to remain unjustifiably shackled during jury selection and trial. The court of appeals properly held that the non-constitutional error that occurred at trial was harmless because no juror saw the shackles during trial. It also properly noted that Appellant forfeited his claim to the constitutional error committed during jury selection by agreeing to proceed with the jury that included a juror who saw Appellant in shackles during jury selection.
But there is still a critical lesson for all trial courts to learn from this case. Maintaining a criminal defendant’s presumption of innocence is a fundamental part of due process. A criminal defendant, whether in custody or not, should never be shackled in front of prospective jurors or a jury during jury selection or the guilt-innocence phase of trial unless: (1) shackling is necessary to protect an essential state interest; and (2) even then, only after the trial court holds a hearing and makes particularized findings that support the necessity. A court’s failure in this regard is error.
With these thoughts, I join in the Court’s decision to refuse Appellant’s petition for discretionary review.