Argued: April 9, 2015
Joseph A. Foster, attorney general (Stephen D. Fuller, senior assistant attorney general, on the brief and orally), for the State.
Christopher M. Johnson, chief appellate defender, of Concord, on the brief and orally, for the defendant.
The defendant, Patrick Eschenbrenner, appeals his convictions, following a jury trial, on five counts of pattern aggravated felonious sexual assault (AFSA), see RSA 632-A:2, III (2007); two counts of AFSA by individual acts, see RSA 632-A:2, I(l) (2007); and one count of witness tampering, see RSA 641:5 (2007). He argues that the Superior Court (Delker, J.) erred when, based upon his recent suicide attempts, it required him to wear a stun belt during his trial. He alleges that there was no manifest need for him to wear the stun belt, and, therefore, his rights to due process and counsel under the State and Federal Constitutions were violated. See N.H. CONST. pt. I, art. 15; U.S. CONST. amends. V, VI, XIV. We affirm.
The following facts are undisputed or are otherwise supported by the record. The defendant was charged with six counts of pattern AFSA, two counts of AFSA as individual acts, and one count of witness tampering. The defendant's trial was scheduled for April 2013, but it was delayed when, just before trial, he attempted to commit suicide. This was his second attempt at suicide while in custody. The defendant was moved to the secure psychiatric unit, and placed on a "suicide watch."
Because of the defendant's suicide attempts, the trial court held a hearing in June 2013 regarding security arrangements that might be needed during trial. Dr. Daniel Potenza, the psychiatric medical director for the New Hampshire Department of Corrections, testified that the defendant had been in the "most secure psychiatric facility in the state" for several weeks. According to Potenza, the defendant had "made it quite clear" that he was "looking for [a] clear opportunity to kill himself" and, "finding that opportunity, he [would] proceed to do that." Potenza stated that the defendant's condition had not improved with treatment, and that he could not predict when it might improve. When asked what measures the trial court could take to minimize the risk of harm to the defendant and the public during the trial, Potenza stated that "the safest place for [the defendant] to be is in his current surroundings at the secure psychiatric unit."
Several law enforcement officials also testified. The state prison warden described the defendant as "pretty adamant about hurting himself, " and explained that it was "highly unusual to have somebody . . . that is currently on a suicide watch exit the prison." He emphasized that "the vulnerable time [for the defendant] is in the courtroom" because things that might seem "fairly innocuous to others, " like paperclips and staples, may be dangerous and "have been used for serious attempts in the prison setting." The chief of security for the secure psychiatric unit and the residential treatment unit testified that a guard checked on the defendant "every 30 minutes, " and that, because "[t]he doctor has not felt [it] safe enough to [allow the defendant] to have a regular tray . . . that can be broken and used for self[-]harm, " the defendant was allowed only finger foods. Lieutenant Goff of the Rockingham County Sheriff's Office proposed specific security measures that could be used in the courtroom. She suggested that if the court wanted to "give the appearance that [the defendant was] not in custody, " the defendant should wear a "stun belt" in the courtroom to "protect everybody in the courtroom by using the stun belt to stop [the defendant's] actions."
A stun belt is a form of prisoner restraint that is placed around the defendant's midsection, and is generally worn under the defendant's clothing so that it is not readily visible to the jury. United States v. Durham, 287 F.3d 1297, 1305 (11th Cir. 2002). It "is controlled by a remote device held by a security official in the courtroom." Id. at 1301. When activated, a stun belt delivers a high-voltage electric shock throughout the defendant's body that "may cause incapacitation, severe pain, uncontrolled defecation or urination, muscular weakness, heartbeat irregularities or seizures." Hymon v. State, 111 P.3d 1092, 1098 (Nev. 2005). Although accidental activations are rare, they have occurred in some instances. See id.; Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1239 (9th Cir. 2001). But see People v. Mar, 52 P.3d 95, 112 (Cal. 2002) (noting "a disturbing number of accidental activations" of stun belts).
At the close of the hearing, the defendant requested a continuance in order to receive further treatment and to eliminate the need for restraints. The trial court granted the continuance, explaining that it did so, in part, to provide "time [for the court] to make a thoughtful and clear decision" about the proposed security measures due to the "significant constitutional issues connected to" them. The defendant subsequently filed a memorandum of law asserting that, due to the significant psychological and physical effects of wearing a stun belt, "a stun belt would violate [his] Sixth Amendment and Part I, Article 15 rights more than physical restraints." See N.H. CONST. pt. I, art. 15; U.S. CONST. amend. VI.
In November 2013, the trial court held a second hearing regarding security measures. Potenza testified that the defendant remained in the secure psychiatric unit on a suicide watch because Potenza had not seen enough improvement in the defendant's condition "to make a status change in terms of his precautionary watch." The defendant expressed concern about what the stun belt - if visible - would imply to the jury, and contended that the "deleterious psychological effect" of "wearing a weapon on his body" could affect his ability to communicate with counsel and infringe upon his rights to counsel and due process under the State and Federal Constitutions. The defendant also argued that, given that he had never exhibited unpredictable or disruptive behavior in the courtroom, the use of the stun belt was not justified. The defendant sought another continuance, arguing that his condition could improve with time and eliminate the need for such security measures.
The State countered that the fact that the defendant had not been disruptive in the courtroom was immaterial, and argued that the trial court should take whatever security measures were necessary to protect everyone in the courtroom, including the defendant himself. The State contended that, because the stun belt would not be visible to the jury, it was "the most minimally intrusive" restraint that the trial court could require.
The trial court denied the defendant's request for a continuance, concluding that, because the defendant's condition had not improved during the previous eight months, it was "not likely to improve significantly within a reasonable period of time." The trial court also ruled that: (1) the defendant would not have access to "any kind of sharp instruments, including pens, pencils, staples, paperclips, [and] binder clips"; and (2) "given [the defendant's] mental conditions . . . his risk of injuring himself . . . [and] the need to take immediate action, if he does attempt something, " a stun belt was "an appropriate ...