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THE COURT OF APPEALS OF THE STATE OF ALASKA
MICHAEL L. RAE, )
)
Appellant, ) Court of Appeals No. A-4860
) Trial Court Nos. 3KN-S92-1369/
) 1448CR
v. )
) O P I N I
O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1375 - November 4, 1994]
______________________________)
Appeal from the Superior Court, Third
Judicial District, Kenai, Charles K.
Cranston, Judge.
Appearances: Thomas A. Ballantine III,
Anchorage, for Appellant. Nancy R. Simel,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Bruce M. Botelho, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
COATS, Judge.
Michael L. Rae was tried before a jury on charges of
second-degree criminal mischief,1 reckless driving,2 driving
while license revoked (DWLR),3 and failure to stop at the
direction of a police officer.4 On the criminal mischief charge
the jury convicted Rae of the lesser-included offense of third-
degree criminal mischief.5 Rae was convicted as charged on the
other three counts.
As a result of Rae's disruptive behavior during pre-
trial proceedings, the trial court, Superior Court Judge Charles
K. Cranston, ordered Rae bound and gagged for the duration of his
trial. We conclude that the trial court abused its discretion in
resorting to these very extreme measures without first holding a
full hearing and considering less restrictive measures. We
therefore reverse Rae's convictions and remand the case for a new
trial.
At the calendar call a few days before Rae's trial
began, Rae asked for the dismissal of his court-appointed
attorney, Gordon Goodman, and appointment of a new attorney.
Judge Cranston denied the request, but Rae persisted in arguing
and begging for a new lawyer. Rae eventually shoved Goodman, and
Rae was then removed from the courtroom. Judge Cranston told
Goodman to inform Rae that if he impeded the trial proceedings,
the judge would have him gagged.
When court convened on the day set for trial, Rae asked
the court to allow him to represent himself at trial. The court
denied the request as untimely.6 During the discussion of Rae's
request to represent himself, Rae persisted in interrupting and
arguing with the judge. Judge Cranston warned Rae that if he
continued to disrupt the proceedings he would be "bound and
gagged." Rae continued to interject arguments. He also, in
Goodman's words, "started to make a move towards [Goodman]."
Goodman "jumped out of the way so [Rae] couldn't do anything
silly." The court ordered the judicial services officers to take
Rae out and put him "in restraints" and gag him.
While Rae was out of the courtroom with the officers,
the court asked the prosecutor whether he felt anything else had
to be done to make a record of the reasons for restraining Rae.
The prosecutor had no suggestions. Goodman told the court that
he did not think that a conflict of interest had arisen due to
Rae's actions toward him. He said he was ready to proceed as
Rae's trial counsel. Goodman did not argue against the
restraints, but said:
I think it's really sad that he's going
to be gagged as well as bound. I know the
court doesn't want the jury prejudiced and he
probably would say something on purpose that
would cause a problem. It's going to be
difficult for a jury to be fair to someone
who's bound and gagged. I don't know the
answer.
When Rae was brought back into the courtroom bound and
gagged,7 the judge told Rae that if Rae would indicate by nodding
that he agreed not to disrupt the proceedings, the gag would be
removed. Rae did not respond, so he remained gagged.
The prospective jurors were brought in and the court
told them that "the fact of trial has been stressful to Mr. Rae
to the extent that the court has found it necessary to impose
restraints on Mr. Rae that would not ordinarily be imposed upon a
defendant in a criminal case." The court said that the
restraints had nothing to do with Rae's guilt or innocence, and
were not to be considered as such.
The first panel of twenty prospective jurors was called
to the jury box, and the judge asked whether the restraints on
Rae caused any of the jurors to feel that they would be unable to
give him a fair and impartial trial. Six of the twenty were
excused because they said the restraints would impair their
ability to be impartial. Of those six, two did not specify their
problems with the restraints, two indicated that they thought the
restraints were cruel and that they felt sorry for Rae, and two
indicated that they thought the restraints made Rae look guilty.
Six more people were brought into the jury box and asked the same
question. One of the new panelists said that it frightened her
to see Rae restrained that way, and that she was also shocked
that a defendant would be treated that way. Two other panelists
agreed with these statements, and another said it looked to her
like Rae could be a danger to the jurors. Those four jurors were
excused. More panelists were seated and one more was excused
after saying that she could not be fair because of the
restraints. Later, another juror was challenged by the state and
excused due to his reaction to the restraints. Another juror
said, when questioned by Goodman, that he thought that the
restraints made Rae look "like he's done something wrong. He's
guilty of something." This juror was peremptorily challenged by
the defense.
On the second day of trial, with jury selection still
in progress, Judge Cranston gave Rae the opportunity to proceed
without the gag (but with the physical restraints). The judge
told Rae that if Rae would assure the court that he would not
disrupt the proceedings, he would not be gagged from that point
on. Rae refused to answer the court's inquiry. The court then
asked both counsel whether they had any suggestions. The
prosecutor said that he preferred not to have Rae gagged. The
judge decided to proceed without the gag, so long as there were
no interruptions. Goodman then told the court that Rae was
unhappy with the idea of being bound but not gagged, and that he
preferred being both bound and gagged to being only bound. Rae
told the court that he believed it would make him look violent if
he was bound but not gagged, and he argued that it was
prejudicial to bind and not gag him because the real reason for
both the restraints and the gag was his verbal protest. Rae
promised the court that he would not assault anyone if the
restraints were removed, but the judge explained to Rae that he
felt it necessary to physically restrain Rae as a result of Rae's
two attempts to assault Goodman.
Judge Cranston ruled that the trial would proceed with
Rae bound but not gagged. The judge stated, "I am willing to
risk at this point having no verbal restraint, believing that I
can deal with any issues of mistrial, probably through
instruction, and that nobody is placed in any physical danger."
The judge changed his mind, however, when Rae said that he
intended to make it known to the jury that he believed he had not
been zealously represented by his attorney. After hearing this,
the judge ordered Rae gagged again. Rae remained bound and
gagged throughout the duration of the four-day trial.
In order to preserve the presumption of innocence, a
defendant is entitled to "face the jury with the appearance and
dignity of a free and innocent man," Anthony v. State, 521 P.2d
486, 495 (Alaska 1974), and "without the badges of custody,"
Stern v. State, 827 P.2d 442, 448 (Alaska App. 1992). Society's
interest in the progress of criminal trials must also be
vindicated, however. To this end, "trial judges confronted with
disruptive, contumacious, stubbornly defiant defendants must be
given sufficient discretion to meet the circumstances of each
case." Illinois v. Allen, 397 U.S. 337, 343 (1970).
Faced with a defendant's "flagrant disregard in the
courtroom of elementary standards of proper conduct," a trial
judge has at least three constitutionally permissible
alternatives: binding and gagging the defendant, citing him for
contempt, and removing him from the courtroom. Allen, 397 U.S.
at 343-44. The Supreme Court cautioned, however, against the
extreme disadvantages of trying a defendant while he sits bound
and gagged:
[E]ven to contemplate such a technique,
much less see it, arouses a feeling that no
person should be tried while shackled and
gagged except as a last resort. Not only is
it possible that the sight of shackles and
gags might have a significant effect on the
jury's feelings about the defendant, but the
use of this technique is itself something of
an affront to the very dignity and decorum of
judicial proceedings that the judge is
seeking to uphold. Moreover, one of the
defendant's primary advantages of being
present at the trial, his ability to
communicate with his counsel, is greatly
reduced when the defendant is in a condition
of total physical restraint.
Id. at 344. See also Spain v. Rushen, 883 F.2d 712, 720-21 (9th
Cir. 1989)(noting two additional problems with shackling a
defendant: shackles "may confuse and embarrass the defendant,
thereby impairing his mental faculties" and they may cause the
defendant pain).
An "inherently prejudicial practice . . . like
shackling, should be permitted only where justified by an
essential state interest specific to each trial." Holbrook v.
Flynn, 475 U.S. 560, 568-69 (1986). The use of shackles and
other physical restraints is "justified only to protect the
safety and decorum of the court, to prevent a threatened escape,
or to respond to some other manifest necessity." Anthony, 521
P.2d at 496.
The Alaska Supreme Court has held that before resorting
to measures such as shackling, the trial court must give the
defendant an opportunity for a hearing, and must determine that
the restraints to be imposed are "the least intrusive which will
accomplish the desired result." Id. The trial court in this
case did not hold a hearing before ordering Rae bound and gagged.
Judge Cranston did not consider any less restrictive physical
restraints than leg shackles and a belly chain with handcuffs,8
nor did he consider alternatives such as citing Rae for contempt
or excluding him from the courtroom.9 10
Rae stood trial in a condition of total physical and
vocal restraint. The detriments of such a trial are manifest in
the record here. It is clear from the comments of the
prospective jurors during jury selection that the sight of Rae
bound and gagged had a significant effect on the jurors' feelings
about him. Moreover, the combination of gag and handcuffs
presumably made any meaningful communication between Rae and his
attorney during the trial impossible. Finally, the spectacle of
a defendant gagged at the mouth and wreathed in chains is an
affront to the dignity and decorum of judicial proceedings that
Judge Cranston was seeking to uphold.
Judge Cranston's stated reason for ordering Rae
shackled was to ensure the safety of Rae's attorney, and possibly
of others in the courtroom. The gag was ordered as a result of
Rae's persistent verbal interruptions of the trial call and pre-
jury selection proceedings, and was continued when Rae made known
his intention of letting the jury know that he thought his
counsel was ineffective. We do not mean to suggest that Judge
Cranston's concerns did not warrant preventive measures. Such
extreme measures as were taken in this case, however, are
permissible only after the defendant has been afforded a hearing
and the court has determined that no less restrictive means would
suffice. The lack of a hearing and the requisite findings in
this case necessitate reversal of Rae's convictions.
Rae also claims plain error in the trial court's taking
of conclusive judicial notice of one of the elements of DWLR.
During the presentation of the state's case, the prosecutor asked
the court to take judicial notice of the fact that Rae's driver's
license had been revoked at the time of the offenses alleged in
this case. Rae did not object to the prosecutor's proposal. The
court told the jury:
I'm going to advise you that the court
has taken judicial notice based upon records
of the Division of Motor Vehicles that as of
September 12, 1992, the Alaska operator's
license of Michael L. Rae was suspended or
revoked. The court will advise you in an
instruction which we will give you at the end
of the case of that judicial notice.
At the close of the trial, again without objection from Rae, the
court instructed the jury:
I may take judicial notice of facts or
events which are matters of common knowledge.
When I declare that the court will take
judicial notice of some fact or event, you
must accept my declaration as evidence and
regard as conclusively proved the fact or
event which I have judicially noticed.
The state concedes that the court's instruction
regarding judicial notice constitutes reversible error. The
concession is well taken. The taking of conclusive judicial
notice of an element of a criminal charge violates Alaska
Evidence Rule 203(c), and deprives the defendant of his right to
be convicted only upon a jury's finding of proof beyond a
reasonable doubt of every element of the offense. This is
reversible error without regard either to whether there was an
objection from the defense, or to whether the defendant suffered
any prejudice other than having had his guilt adjudged by the
wrong entity. Fielding v. State, 842 P.2d 614 (Alaska App.
1992); Smallwood v. State, 781 P.2d 1000 (Alaska App. 1989).
The judgment of conviction against Rae is REVERSED.
_______________________________
1 Alaska Statute 11.46.482(a)(4).
2 Alaska Statute 28.35.040.
3 Alaska Statute 28.15.291.
4 Alaska Statute 28.35.182.
5 Alaska Statute 11.46.484(a)(2).
6 Our disposition of this case makes it unnecessary to
consider Rae's claim that the court erred in denying his request
to represent himself at trial.
7 The restraints consisted of leg shackles and a "belly
chain" to which Rae was handcuffed.
8 It does not appear that the court made any effort to hide
Rae's shackles from the jury, for example by hanging a curtain
around the defense table to conceal the leg-irons. See, e.g.,
Stern v. State, 827 P.2d 442 (Alaska App. 1992); Newcomb v.
State, 800 P.2d 935 (Alaska App. 1990).
9 See Allen, 397 U.S. 337; Rushen, 883 F.2d 712 (suggesting
that at least in some cases exclusion of the defendant from the
courtroom is a less drastic measure than binding and gagging).
10 On the second day of trial, the court did mention in
passing the possibility of giving Rae the option of exclusion
from the courtroom if he did not want to appear in chains.
Neither the prosecutor nor defense counsel responded to the
court's remark, and the possibility of excluding Rae from the
trial was never seriously explored.
