THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANTHONY M. JOHNSON, Defendant-Appellant, 356 Ill. App. 3d 208

JUSTICE HOLDRIDGE delivered the opinion of the court: Following a jury trial, defendant, Anthony M. Johnson, was convicted of attempted robbery and aggravated battery (720 ILCS 5/8 — 4(a), 18 — 1(a), 12 — 4(b)(8) (West 2000)). He was sentenced to eight years’ imprisonment and given credit for 357 days of presentence incarceration. Defendant appeals, arguing that (1) the trial court erred when it denied his mid-trial request to remove an electronic security belt, and (2) he is entitled to one additional day of presentence custody credit.

On appeal, the defendant maintains that he is entitled to a new trial because the trial court erred in denying his request to remove an electronic security belt prior to his testimony. Defendant contends that the trial court’s determination not to order removal of the electronic security belt cannot be sustained under the “manifest need” test adopted for physical restraints in People v. Boose, 66 Ill. 2d 261 (1977).

The State responds that (1) the electronic security belt is not a “restraining device,” (2) the court did not abuse its discretion in ruling on the defendant’s request, or (3) any error was harmless beyond a reasonable doubt. All three of these arguments were recently rejected by this court in People v. Martinez, 347 Ill. App. 3d 1001, 808 N.E.2d 1089 (2004). In Martinez, this court was confronted with the use of a similar electronic security belt and concluded that the belt was a restraining device subject to the manifest need test articulated in Boose. Martinez, 347 Ill. App. 3d at 1003-04, 808 N.E.2d at 1091.

In Martinez, this court determined that the trial court abused its discretion when it failed to consider the factors articulated in Boose for determining the propriety of using restraining devices. Martinez, 347 Ill. App. 3d at 1004-05, 808 N.E.2d at 1092. Martinez held that the trial judge must make the determination as to whether physical restraint of a defendant is necessary and further held that the trial court’s decision on the matter would not be overturned absent an abuse of discretion. Martinez, 347 Ill. App. 3d at 1005, 808 N.E. 2d at 1093.

We find it necessary at this point to comment upon what Martinez did not hold. It did not hold that stun belts cannot be used to restrain a potentially dangerous defendant. Although that position was articulated in the special concurrence it was not part of the holding of the court. Martinez, 347 Ill. App. 3d at 1005, 808 N.E.2d at 1093 (Mc-Dade, J., specially concurring).

Rather, relying squarely upon the sound reasoning in Boose, the Martinez opinion simply reiterated the timeless adage that the trial judge is in charge of his or her courtroom and any decision regarding courtroom procedures, including physical restraint of the defendant, must be made by the judge. Martinez, 347 Ill. App. 3d at 1004, 808 N.E.2d at 1091. This is hardly a novel or radical concept. See People v. Hill, 17 Cal. 4th 800, 952 P.2d 673, 72 Cal.

Rptr. 2d 656 (1998) (it is the trial court, not law enforcement personnel, that must make the decision that the defendant be physically restrained in the courtroom, and the trial court abuses its discretion if it abdicates this decisionmaking responsibility to law enforcement personnel); State v. Moen, 94 Idaho 477, 491 P.2d 858 (1971) (although sheriff has some initial responsibility for determining whether a defendant should be physically restrained during trial, the trial judge, in fulfilling his or her duty to preside over the trial, must decide the question); State v.

Evans, 169 N.W.2d 200 (Iowa 1969) (trial judge misconceived his authority and duty by stating that the matter of physical restraint of the defendant was solely to be handled by the sheriff and that the trial judge had no control over the physical restraint of the defendant); State v. Merrell, 170 Or. App. 400, 12 P.3d 556 (2000) (although sheriff may provide helpful and necessary information regarding the need to apply physical restraining devices to a defendant, the trial court may not simply accept the conclusions of others, but must make an independent determination that restraint is justified).

See also State v. Woolcock, 201 Conn. 605, 518 A.2d 1377 (1986); Whittlesey v. State, 340 Md. 30, 665 A.2d 223 (1995); Commonwealth v. Brown, 364 Mass. 471, 305 N.E.2d 830 (1973). Since it is clearly established that the trial judge, in his or her own sole discretion, must determine whether physical restraint of the defendant is necessary, the next question is whether the trial judge abused that discretion.

In order for a court of review to answer that question, the trial judge must state for the record the reasons for the restraint and must give the defendant’s attorney an opportunity to present reasons why the defendant should not be restrained. Martinez, 347 Ill. App. 3d at 1004, 808 N.E.2d at 1091, citing People v. Buss, 187 Ill. 2d 144, 216 (1999).

Factors to be considered by the trial judge in making this determination include: “ ‘ “[T]he seriousness of the present charge against the defendant; defendant’s temperament and character; his age and physical attributes; his past record; past escapes or attempted escapes, and evidence of a present plan to escape; threats to harm others or cause a disturbance; self-destructive tendencies; the risk of mob violence or of attempted revenge by others; the possibility of rescue by other offenders still at large; the size and mood of the audience; the nature and physical security of the courtroom; and the adequacy and availability of alternative remedies.” ’ ” Martinez, 347 Ill.

App. 3d at 1004, 808 N.E.2d at 1091, quoting Boose, 66 Ill. 2d at 266-67, quoting State v. Tolley, 290 N.C. 349, 368, 226 S.E.2d 353, 368 (1976). The Martinez court, again relying upon our supreme court’s decision in Boose, held that an error in the decision to physically restrain a defendant impacts upon the fundamental right to a fair trial, and thus cannot be harmless error. Martinez, 347 Ill. App. 3d at 1005, 808 N.E.2d at 1092, quoting Boose, 66 Ill. 2d at 269.

Here, the trial court noted that the defendant had a past history of convictions involving aggressive conduct, but it does not appear from the record that the trial court considered any of the other factors articulated in Boose. Since a full Boose analysis is necessary under such circumstances, the trial court’s treatment of the issue was incomplete. As the Martinez court noted, such error cannot be deemed harmless. However, rather than proceeding immediately to a new trial, this problem can be remedied by remanding the case to the trial court for a retrospective Boose hearing.

If the hearing reveals an adequate basis for having used the stun belt, then the defendant’s conviction should stand. If, however, the Boose analysis does not favor using the belt, then a new trial would be indicated. Cf. Childers v. State, 782 So. 2d 513, 518 (Fla. App. 2001) (no formal hearing on the use of physical restraints is necessary, but where there is a total lack of a record, the decision should be remanded for a hearing); see also People v.

Williams, 36 A.D.2d 1018, 321 N.Y.S.2d 463 (1971) (where the facts relevant to the needs of restraint of defendant are not sufficiently developed at trial, a posttrial hearing should be held on that issue); People v. Reingold, 44 A.D.2d 191, 353 N.Y.S.2d 978 (1974) (posttrial hearing must be had, wherein evidence should be presented for the record regarding reasons for restraining the defendant).

We hold that, in all cases where the trial court fails to employ a proper Boose analysis before imposing physical restraints, the matter may be remanded to the trial court to conduct a hearing wherein the reasons for and against the restraints are argued and the reasons underlying the judge’s decision are placed in the record. In so holding, we are confident that in the future the need for such posttrial proceedings will be very limited. Future decisions to physically restrain a defendant, by whatever means, must be made by the trail judge and adequately supported in the record.

If those two requirements are met, the trial judge may rest assured that his or her decision to control the courtroom will be granted appropriate deference and will only be overturned upon a showing of an abuse of that discretion. As the defendant makes no other claims of error regarding his conviction, we affirm the conviction, subject to remand. We note that the State has conceded that the defendant’s sentencing order should reflect the additional day of credit and we so order. For the reasons articulated above, we remand the matter for a posttrial hearing on the decision to restrain the defendant.

Affirmed in part and remanded for further proceedings.