Jackson, Sr. appeals his conviction and sentence for second
degree assault by strangulation. Jackson argues that the
trial court violated his constitutional right to due process
when it used restraints on him during pretrial hearings and
jury trial without conducting an individualized inquiry into
the need for the restraints. He also argues that the trial
court erred by imposing legal financial obligations (LFOs)
despite his indigency. We agree that the trial court violated
his constitutional right to due process by failing to conduct
an individual inquiry into the need for pretrial and trial
restraints, but we hold that the errors were harmless.
Accordingly, we affirm his conviction and remand to the trial
court for reconsideration of the imposition of LFOs.
State charged Jackson with second degree assault for
strangling his fiancée, Darci Black.
first pretrial appearance, Jackson appeared before the court
in a belly chain and shackles. Jackson's defense attorney
objected to the restraints and moved to have them removed.
The trial court reserved ruling until it received a response
and it set a hearing at a later date. The trial court set
bail at $35, 000 based on "the nature of the charges,
the criminal history, [and] the fact that there's been at
least four or five warrants over the years." Verbatim
Report of Proceedings (RP) at 14.
arraignment hearing a few days later, the trial court
declined to lower bail because the court was concerned about
whether Jackson would return, about the nature of the
allegations, and about community safety. The trial court
again declined to reduce bail at a later status hearing.
trial court subsequently held a hearing on Jackson's
objection to restraints and motion for their removal. The
hearing consolidated multiple defendants' motions
regarding being shackled in their cases. The trial court said
it would issue a decision that applied to the entirety of the
Clallam County Superior Court.
weeks later, the trial court issued a memorandum opinion
"address[ing] all restraint/shackling motions currently
before the court and reflect[ing] the unified position of the
Clallam County Superior Court on this issue."
Clerk's Papers (CP) at 64. The ruling acknowledged that
"less restrictive means of furthering the compelling
government interest of courtroom security" existed,
which would "eliminate potential problems associated
with defendants being so humiliated and distracted by their
restraints that it interferes with their ability to
communicate with their lawyers and would address concerns
associated with the routine use of restraints affronting the
dignified and decorous judicial process." CP at 65-66.
The trial court envisioned implementing video conferencing as
a less restrictive option, but it noted that the superior
court would be unable to implement a video conferencing
policy for several months.
trial court concluded that until the video conferencing
policy could be implemented, the court would proceed under
its previous ruling, which adopted the Clallam County
Corrections Facility's shackling policy for all pretrial
hearings. The previous policy considered general
"security concerns associated with transporting varying
numbers of in-custody defendants from secure facilities to
less-secure courtrooms" and noted that Clallam County
"is routinely limited by budget issues and staff
shortages." See Motion to Supp. Record on
Appeal at 12 (May 1, 2018). Under the policy, all criminal
defendants would appear at pretrial proceedings in shackles,
and the trial court would not consider motions for removal of
the restraints during pretrial proceedings.
the case proceeded to jury trial, Jackson was fitted with a
leg brace, which he wore under his clothes. The brace would
lock into position when he straightened his leg. Defense
counsel objected to the brace, noting that the trial court
had not made any rulings about the use of this restraint
during trial. The trial court responded:
At this juncture, I don't think there's anything
inappropriate in having that limited security measure
employed. To the extent that your client wishes to testify,
we'll make sure that he gets into the witness box without
the jury being present and seeing him perhaps have some
difficulty walking. But, at this juncture, I think that it is
appropriate to have some limited security and I think that
the brace that is employed is certainly appropriate.
RP at 75.
testified at trial. She said that Jackson drove her to a
doctor's appointment. On their way home from the
appointment, Jackson drove onto an industrial road and he and
Black began having sexual intercourse. Jackson became upset,
accused Black of cheating on him, and ripped Black's
engagement ring off of her finger. Jackson pushed Black and
started to strangle her, saying, "[D]ie, why don't
you F'ing die." RP at 317. Jackson let go and then
strangled Black a second and third time. Finally, Jackson
released Black and starting crying and apologizing for almost
killing her. Later that afternoon, Black told her sister that
Jackson had tried to kill her and her sister called the
trial court admitted a series of text messages between Black
and Jackson from the day of the incident. The messages were
obtained from both Black's and Jackson's phones
because Black had deleted several messages.
John Shima, an emergency room physician who evaluated Black
the evening of the incident, also testified at trial. Dr.
Shima observed that there were mild abrasions and bruises
around Black's neck consistent with a strangulation
testified in his defense. To avoid the jury seeing Jackson
struggle to walk with his leg restraint to the witness stand,
the trial court instructed Jackson to enter the stand before
the jury entered the courtroom. Jackson asked the trial court
if he needed to stand when the jury came in. The trial court
asked if it was difficult for Jackson to stand with the
restraint. Jackson's defense counsel responded, "I
mean, he's been doing it, but the brace will be basically
on the leg next to them, when he's sitting up there,
it's on his left leg." RP at 448. The court
continued, "I'll give you the oath seated, so just
have a seat. Actually, if you're standing when they come
in, is it problematic sitting down, I mean, is it
observable?" RP at 448. Jackson responded, "They
can actually see it. . . . Yeah, it's gonna be noticeable
for them." RP at 448. The trial court instructed him to
remain seated. RP at 448.
Jackson testified as follows. The day before Black's
doctor's appointment, Black and Jackson had sexual
intercourse in a car. After Black's doctor's
appointment the next day, Jackson drove her back to her
parents' house. On the way to Black's parents'
house, Black became irritable, and Jackson suggested she get
her medication that helps with her anger. Once at Black's
parents' house, Black went inside. When Black returned to
the car, she started yelling at Jackson and accused him of
cheating on her. After arguing for an hour, Jackson indicated
that he was going to leave, at which point Black started
punching him. Jackson ultimately got out of the car and
started walking away. Black chased after him, yelling at him,
and demanding he tell her who he was sleeping with.
Eventually Black's sister yelled at Black to "just
let him go Darc, just let him go." RP at 458.
jury found Jackson guilty of second degree assault. The trial
court sentenced Jackson to 20 months confinement and imposed
appeals his conviction and sentence.
Pretrial & Trial Restraint
argues that the trial court violated his constitutional right
to due process when it adopted the jail's blanket policy
of shackling criminal defendants during pretrial proceedings,
and by requiring him to wear a leg restraint during the jury
trial without conducting an individual inquiry into the need
to restrain him. We hold that the trial court violated
Jackson's constitutional right to due process by failing
to perform an individualized inquiry into the need to
restrain him at the pretrial proceedings and at trial, but we
further hold that these errors were harmless.
review constitutional claims de novo. State v.
Lundstrom, 6 Wn.App. 2d 388, 393, 429, P.3d 1116 (2018),
review denied, 193 Wn.2d 1007 (2019). A criminal
defendant has a right to appear before the court "with
the appearance, dignity, and self-respect of a free and
innocent man." State v. Finch, 137 Wn.2d 792,
844, 975 P.2d 967 (1999); U.S. Const. amends. VI, XIV. The
Washington Constitution provides, "In criminal
prosecutions the accused shall have the right to appear and
defend in person." Wash. Const. art. I, § 22.
Washington courts have long held that the right to appear and
defend in person extends to "the use of not only his
mental but his physical faculties unfettered, and unless some
impelling necessity demands the restraint of a prisoner, to
secure the safety of others and his own custody, the binding
of the prisoner in irons is a plain violation of the
constitutional guaranty." State v. Williams, 18
Wash. 47, 51, 50 P. 580 (1897). This includes the right
"to be brought into the presence of the court free from
restraints." State v. Damon, 144 Wn.2d 686,
690, 25 P.3d 418 (2001).
of the nature of the court proceeding or whether a jury is
present, it is particularly within the province of the trial
court to determine whether and in what manner shackles or
other restraints should be used." State v.
Walker, 185 Wn.App. 790, 797, 344 P.3d 227 (2015).
Restraints are disfavored because they may interfere with
important constitutional rights, "including the
presumption of innocence, privilege of testifying [on]
one's own ...