[87] 4.

[88] In recent years, more of a consensus regarding the use of shackling has developed, with many courts concluding that shackling is inherently prejudicial. But rather than being firmly grounded in deeply rooted principles, that consensus stems from a series of ill-considered dicta in Illinois v. Allen, 397 U. S. 337 (1970), Estelle v. Williams, 425 U. S. 501 (1976), and Holbrook v. Flynn, 475 U. S. 560 (1986).

[89] In Allen, the trial court had removed the defendant from the courtroom until the court felt he could conform his conduct to basic standards befitting a court proceeding. 397 U. S., at 340-341. This Court held that removing the defendant did not violate his due process right to be present for his trial. In dicta, the Court suggested alternatives to removal, such as citing the defendant for contempt or binding and gagging him. Id., at 344. The Court, however, did express some revulsion at the notion of binding and gagging a defendant. Ibid. Estelle and Holbrook, repeated Allen's dicta. Estelle, supra, at 505; Holbrook, supra, at 568. The Court in Holbrook went one step further than it had in Allen, describing shackling as well as binding and gagging in dicta as "inherently prejudicial." 475 U. S., at 568.

[90] The current consensus that the Court describes is one of its own making. Ante, at 5. It depends almost exclusively on the dicta in this Court's opinions in Holbrook, Estelle, and Allen. Every lower court opinion the Court cites as evidence of this consensus traces its reasoning back to one or more of these decisions.*fn17 These lower courts were interpreting this Court's dicta, not reaching their own independent consensus about the content of the Due Process Clause. More important, these decisions represent recent practice, which does not determine whether the Fourteenth Amendment, as properly and traditionally interpreted, i.e., as a statement of law, not policy preferences, embodies a right to be free from visible, painless physical restraints at trial.

[91] III.

[92] Wholly apart from the propriety of shackling a defendant at trial, due process does not require that a defendant remain free from visible restraints at the penalty phase of a capital trial. Such a requirement has no basis in tradition or even modern state practice. Treating shackling at sentencing as inherently prejudicial ignores the commonsense distinction between a defendant who stands accused and a defendant who stands convicted.

[93] A.

[94] There is no tradition barring the use of shackles or other restraints at sentencing. Even many modern courts have concluded that the rule against visible shackling does not apply to sentencing. See, e.g., State v. Young, 853 P. 2d 327, 350 (Utah 1993); Duckett v. State, 104 Nev. 6, 11, 752 P. 2d 752, 755 (1988) (per curiam); State v. Franklin, 97 Ohio St. 3d 1, 18-19, 776 N. E. 2d 26, 46-47 (2002); but see Bello v. State, 547 So. 2d 914, 918 (Fla. 1989) (applying rule against shackling at sentencing, but suggesting that "lesser showing of necessity" may be appropriate). These courts have rejected the suggestion that due process imposes such limits because they have understood the difference between a man accused and a man convicted. See, e.g., Young, supra, at 350; Duckett, supra, at 11, 752 P. 2d, at 755.

[95] This same understanding is reflected even in the guilt-innocence phase. In instances in which the jury knows that the defendant is an inmate, though not yet convicted of the crime for which he is on trial, courts have frequently held that the defendant's status as inmate ameliorates any prejudice that might have flowed from the jury seeing him in handcuffs.*fn18 The Court's decision shuns such common sense.

[96] B.

[97] In the absence of a consensus with regard to the use of visible physical restraints even in modern practice, we should not forsake common sense in determining what due process requires. Capital sentencing jurors know that the defendant has been convicted of a dangerous crime. It strains credulity to think that they are surprised at the sight of restraints. Here, the jury had already concluded that there was a need to separate Deck from the community at large by convicting him of double murder and robbery. Deck's jury was surely aware that Deck was jailed; jurors know that convicted capital murderers are not left to roam the streets. It blinks reality to think that seeing a convicted capital murderer in shackles in the courtroom could import any prejudice beyond that inevitable knowledge.

[98] Jurors no doubt also understand that it makes sense for a capital defendant to be restrained at sentencing. By sentencing, a defendant's situation is at its most dire. He no longer may prove himself innocent, and he faces either life without liberty or death. Confronted with this reality, a defendant no longer has much to lose -- should he attempt escape and fail, it is still lengthy imprisonment or death that awaits him. For any person in these circumstances, the reasons to attempt escape are at their apex. A defendant's best opportunity to do so is in the courtroom, for he is otherwise in jail or restraints. See Westman, Handling the Problem Criminal Defendant in the Courtroom: The Use of Physical Restraints and Expulsion in the Modern Era, 2 San Diego Justice J. 507, 526-527 (1994) (hereinafter Westman).

[99] In addition, having been convicted, a defendant may be angry. He could turn that ire on his own counsel, who has failed in defending his innocence. See, e.g., State v. Forrest, 609 S. E. 2d 241, 248-249 (N. C. App. 2005) (defendant brutally attacked his counsel at sentencing). Or, for that matter, he could turn on a witness testifying at his hearing or the court reporter. See, e.g., People v. Byrnes, 33 N. Y. 2d 343, 350, 308 N. E. 2d 435, 438 (1974) (defendant lunged at witness during trial); State v. Harkness, 252 Kan. 510, 516, 847 P. 2d 1191, 1197 (1993) (defendant attacked court reporter at arraignment). Such thoughts could well enter the mind of any defendant in these circumstances, from the most dangerous to the most docile. That a defendant now convicted of his crimes appears before the jury in shackles thus would be unremarkable to the jury. To presume that such a defendant suffers prejudice by appearing in handcuffs at sentencing does not comport with reality.

[100] IV.

[101] The modern rationales proffered by the Court for its newly minted rule likewise fail to warrant the conclusion that due process precludes shackling at sentencing. Moreover, though the Court purports to be mindful of the tragedy that can take place in a courtroom, the stringent rule it adopts leaves no real room for ensuring the safety of the courtroom.

[102] A.

[103] Although the Court offers the presumption of innocence as a rationale for the modern rule against shackling at trial, it concedes the presumption has no application at sentencing. Ante, at 9. The Court is forced to turn to the far more amorphous need for "accuracy" in sentencing. Ibid. It is true that this Court's cases demand reliability in the factfinding that precedes the imposition of a sentence of death. Monge v. California, 524 U. S. 721, 732 (1998). But shackles may undermine the factfinding process only if seeing a convicted murderer in them is prejudicial. As I have explained, this farfetched conjecture defies the reality of sentencing.

[104] The Court baldly asserts that visible physical restraints could interfere with a defendant's ability to participate in his defense. Ante, at 7-8. I certainly agree that shackles would be impermissible if they were to seriously impair a defendant's ability to assist in his defense, Riggins v. Nevada, 504 U. S. 127, 154, n. 4 (1992) (Thomas, J., dissenting), but there is no evidence that shackles do so. Deck does not argue that the shackles caused him pain or impaired his mental faculties. Nor does he argue that the shackles prevented him from communicating with his counsel during trial. Counsel sat next to him; he remained fully capable of speaking with counsel. Likewise, Deck does not claim that he was unable to write down any information he wished to convey to counsel during the course of the trial. Had the shackles impaired him in that way, Deck could have sought to have at least one of his hands free to make it easier for him to write. Courts have permitted such arrangements. See, e.g., People v. Alvarez, 14 Cal. 4th 155, 191, 926 P. 2d 365, 386 (1996); State v. Jimerson, 820 S. W. 2d 500, 502 (Mo. App. 1991).

[105] The Court further expresses concern that physical restraints might keep a defendant from taking the stand on his own behalf in seeking the jury's mercy. Ante, at 7-8. But this concern is, again, entirely hypothetical. Deck makes no claim that, but for the physical restraints, he would have taken the witness stand to plead for his life. And under the rule the Court adopts, Deck and others like him need make no such assertion, for prejudice is presumed absent a showing by the government to the contrary. Even assuming this concern is real rather than imagined, it could be ameliorated by removing the restraints if the defendant wishes to take the stand. See, e.g., De Wolf v. State, 96 Okla. Cr. 382, 383, 256 P. 2d 191, 193 (1953) (leg irons removed from defendant in capital case when he took the witness stand). Instead, the Court says, the concern requires a categorical rule that the use of visible physical restraints violates the Due Process Clause absent a demanding showing. The Court's solution is overinclusive.

[106] The Court also asserts the rule it adopts is necessary to protect courtroom decorum, which the use of shackles would offend. Ante, at 8. This courtroom decorum rationale misunderstands this Court's precedent. No decision of this Court has ever intimated, let alone held, that the protection of the "courtroom's formal dignity," ibid., is an individual right enforceable by criminal defendants. Certainly, courts have always had the inherent power to ensure that both those who appear before them and those who observe their proceedings conduct themselves appropriately. See, e.g., Estes v. Texas, 381 U. S. 532, 540-541 (1965).

[107] The power of the courts to maintain order, however, is not a right personal to the defendant, much less one of constitutional proportions. Far from viewing the need for decorum as a right the defendant can invoke, this Court has relied on it to limit the conduct of defendants, even when their constitutional rights are implicated. This is why a defendant who proves himself incapable of abiding by the most basic rules of the court is not entitled to defend himself, Faretta v. California, 422 U. S., at 834-835, n. 46, or to remain in the courtroom, see Allen, 397 U. S., at 343. The concern for courtroom decorum is not a concern about defendants, let alone their right to due process. It is a concern about society's need for courts to operate effectively.

[108] Wholly apart from the unwarranted status the Court accords "courtroom decorum," the Court fails to explain the affront to the dignity of the courts that the sight of physical restraints poses. I cannot understand the indignity in having a convicted double murderer and robber appear before the court in visible physical restraints. Our Nation's judges and juries are exposed to accounts of heinous acts daily, like the brutal murders Deck committed in this case. Even outside the courtroom, prisoners walk through courthouse halls wearing visible restraints. Courthouses are thus places in which members of the judiciary and the public come into frequent contact with defendants in restraints. Yet, the Court says, the appearance of a convicted criminal in a belly chain and handcuffs at a sentencing hearing offends the sensibilities of our courts. The courts of this Nation do not have such delicate constitutions.

[109] Finally, the Court claims that "[t]he appearance of the offender during the penalty phase in shackles ... almost inevitably implies to a jury, as a matter of common sense, that court authorities consider the offender a danger to the community -- often a statutory aggravator and nearly always a relevant factor in jury decisionmaking." Ante, at 10. This argument is flawed. It ignores the fact that only relatively recently have the penalty and guilt phases been conducted separately. That the historical evidence reveals no consensus prohibiting visible modern-day shackles during capital trials suggests that there is similarly no consensus prohibiting shackling during capital sentencing. Moreover, concerns about a defendant's dangerousness exist at the guilt phase just as they exist at the penalty phase -- jurors will surely be more likely to convict a seemingly violent defendant of murder than a seemingly placid one. If neither common law nor modern state cases support the Court's position with respect to the guilt phase, I see no reason why the fact that a defendant may be perceived as a future danger would support the Court's position with respect to the penalty phase.

[110] B.

[111] The Court expresses concern for courtroom security, but its concern rings hollow in light of the rule it adopts. The need for security is real. Judges face the possibility that a defendant or his confederates might smuggle a weapon into court and harm those present, or attack with his bare hands. For example, in 1999, in Berks County, Pennsylvania, a "defendant forced his way to the bench and beat the judge unconscious." Calhoun, Violence Toward Judicial Officials, 576 Annals of the American Academy of Political and Social Science 54, 61 (2001). One study of Pennsylvania judges projected that over a 20-year career, district justices had a 31 percent probability of being physically assaulted one or more times. See Harris, Kirschner, Rozek, & Weiner, Violence in the Judicial Workplace: One State's Experience, 576 Annals of the American Academy of Political and Social Science 38, 42 (2001). Judges are not the only ones who face the risk of violence. Sheriffs and courtroom bailiffs face the second highest rate of homicide in the workplace, a rate which is 15 times higher than the national average. Faust & Raffo, Local Trial Court Response to Courthouse Safety, 576 Annals of the American Academy of Political and Social Science 91, 93-94 (2001); Weiner et al., Safe and Secure: Protecting Judicial Officials, 36 Court Review 26, 27 (Winter 2000).

[112] The problem of security may only be worsening. According to the General Accounting Office (GAO), the nature of the prisoners in the federal system has changed: "[T]here are more `hard-core tough guys' and more multiple-defendant cases," making the work of the federal marshals increasingly difficult. GAO, Federal Judiciary Security: Comprehensive Risk-Based Program Should Be Fully Implemented 21 (July 1994). Security issues are particularly acute in state systems, in which limited manpower and resources often leave judges to act as their own security. See Harris, supra, at 46. Those resources further vary between rural and urban areas, with many rural areas able to supply only minimal security. Security may even be at its weakest in the courtroom itself, for there the defendant is the least restrained. Westman 526.

[113] In the face of this real danger to courtroom officials and bystanders, the Court limits the use of visible physical restraints to circumstances "specific to a particular trial," ante, at 6, i.e., "particular concerns ... related to the defendant on trial," ante, at 11. Confining the analysis to trial-specific circumstances precludes consideration of limits on the security resources of courts. Under that test, the particulars of a given courthouse (being nonspecific to any particular defendant) are irrelevant, even if the judge himself is the only security, or if a courthouse has few on-duty officers standing guard at any given time, or multiple exits. Forbidding courts from considering such circumstances fails to accommodate the unfortunately dire security situation faced by this Nation's courts.

[114] ***

[115] The Court's decision risks the lives of courtroom personnel, with little corresponding benefit to defendants. This is a risk that due process does not require. I respectfully dissent.


Opinion Footnotes

[116] *fn1 See Coke *34 ("If felons come in judgment to answer, ... they shall be out of irons, and all manner of bonds, so that their pain shall not take away any manner of reason, nor them constrain to answer, but at their free will"); Cranburne's Case, 13 How. St. Tr. 222 (K. B. 1696) (prisoners "should stand at their ease when they are tried"); The Conductor Generalis 403 (J. Parker ed. 1801) (reciting same); cf. ibid. ("[t]hat where the law requires that a prisoner should be kept in salva & arcta custodia, yet that must be without pain or torment to the prisoner").

[117] *fn2 When arraignment and trial occurred on separate occasions, the defendant could be brought to his arraignment in irons. Trial of Christopher Layer, 16 How. St. Tr. 94, 97 (K. B. 1722) (defendant arraigned in irons); King v. Waite, 1 Leach 28, 36, 168 Eng. Rep. 117, 120 (K. B. 1743) (fetters could not be removed until the defendant had pleaded); but cf. R. Burns, Abridgment, or the American Justice 37 (1792) ("The prisoner on his arraignment ... must be brought to the bar without irons and all manner of shackles or bonds, unless there be a danger of escape, and then he may be brought with irons").

[118] *fn3 State v. Mitchell, 824 P. 2d 469, 473-474 (Utah App. 1991); Smith v. State, 773 P. 2d 139, 140-141 (Wyo. 1989); Frye v. Commonwealth, 231 Va. 370, 381-382, 345 S. E. 2d 267, 276 (1986); State v. White, 456 A. 2d 13, 15 (Me. 1983); State v. Baugh, 174 Mont. 456, 462-463, 571 P. 2d 779, 782-783 (1977); Brookins v. State, 354 A. 2d 422, 425 (Del. 1976); State v. Phifer, 290 N. C. 203, 219, 225 S. E. 2d 786, 797 (1976); State v. Lemire, 115 N. H. 526, 531, 345 A. 2d 906, 910 (1975); Anthony v. State, 521 P. 2d 486, 496 (Alaska 1974); State v. Palmigiano, 112 R. I. 348, 357-358, 309 A. 2d 855, 861 (1973); Jones v. State, 11 Md. App. 686, 693-694, 276 A. 2d 666, 670 (1971); State v. Polidor, 130 Vt. 34, 39, 285 A. 2d 770, 773 (1971); State v. Moen, 94 Idaho 477, 479-480, 491 P. 2d 858, 860-861 (1971); State v. Yurk, 203 Kan. 629, 631, 456 P. 2d 11, 13-14 (1969); People v. Thomas, 1 Mich. App. 118, 126, 134 N. W. 2d 352, 357 (1965); State v. Nutley, 24 Wis. 2d 527, 564-565, 129 N. W. 2d 155, 171 (1964), overruled on other grounds by State v. Stevens, 26 Wis. 2d 451, 463, 132 N. W. 2d 502, 508 (1965); State v. Brooks, 44 Haw. 82, 84-86, 352 P. 2d 611, 613-614 (1960); State v. Coursolle, 255 Minn. 384, 389, 97 N. W. 2d 472, 476-477 (1959) (handcuffing of witnesses); Allbright v. State, 92 Ga. App. 251, 252-253, 88 S. E. 2d 468, 469-470 (1955); State v. Roscus, 16 N. J. 415, 428, 109 A. 2d 1, 8 (1954); People v. Snyder, 305 N. Y. 790, 791, 113 N. E. 2d 302 (Ct. App. 1953); Eaddy v. People, 115 Colo. 488, 491, 174 P. 2d 717, 718 (1946) (en banc); State v. McKay, 63 Nev. 118, 161-163, 165 P. 2d 389, 408-409 (1946) (also discussing a 1929 Nevada statute that limited the use of restraints prior to conviction); Rayburn v. State, 200 Ark. 914, 920-922, 141 S. W. 2d 532, 535-536 (1940); Schultz v. State, 131 Fla. 757, 758, 179 So. 764, 765 (1938); Commonwealth v. Millen, 289 Mass. 441, 477-478, 194 N. E. 463, 480 (1935); Pierpont v. State, 49 Ohio App. 77, 83-84, 195 N. E. 264, 266-267 (1934); Corey v. State, 126 Conn. 41, 42-43, 9 A. 2d 283, 283-284 (1939); Bradbury v. State, 51 Okla. Cr. 56, 59-61, 299 P. 510, 512 (App. 1931); State v. Hanrahan, 49 S. D. 434, 435-437, 207 N. W. 224, 225 (1926); South v. State, 111 Neb. 383, 384-386, 196 N. W. 684, 685-686 (1923); Blair v. Commonwealth, 171 Ky. 319, 327, 188 S. W. 390, 393 (1916); McPherson v. State, 178 Ind. 583, 584-585, 99 N. E. 984, 985 (1912); State v. Kenny, 77 S. C. 236, 240-241, 57 S. E. 859, 861 (1907); State v. Bone, 114 Iowa 537, 541-543, 87 N. W. 507, 509 (1901). The North Dakota courts have yet to pass upon the question in any reported decision.

[119] *fn4 See n. 3, supra. It bears noting, however, that in 1817 Georgia enacted a statute limiting the use of physical restraints on defendants at trial, long before any decision was reported in the Georgia courts. Prince's Digest of the Laws of the State of Georgia §21, p. 372 (1822). Its courts did not address shackling until 1955. Allbright v. State, supra, at 252-253, 88 S. E. 2d, at 469-470.

[120] *fn5 Parker v. Territory, 5 Ariz. 283, 287-288, 52 P. 361, 363 (1898); State v. Allen, 45 W. Va. 65, ___, 30 S. E. 209, 211 (1898), overruled in relevant part, State v. Brewster, 164 W. Va. 173, 182, 261 S. E. 2d 77, 82 (1979) (relying on Illinois v. Allen, 397 U. S. 337 (1970), and Estelle v. Williams, 425 U. S. 501 (1976)); State v. Williams, 18 Wash. 47, 50-51, 50 P. 580, 581-582 (1897); Commonwealth v. Weber, 167 Pa. 153, 165-166, 31 A. 481, 484 (1895); Rainey v. State, 20 Tex. Ct. App. 455, 472 (1886); Upstone v. People, 109 Ill. 169, ___ (1883); State v. Thomas, 35 La. Ann. 24, ___ (1883); State v. Smith, 11 Ore. 205, 208, 8 P. 343 (1883); Territory of New Mexico v. Kelly, 2 N. M. 292, 304-306 (1882); Poe v. State, 78 Tenn. 673, 677-678 (1882); Faire v. State, 58 Ala. 74, 80-81 (1877); State v. Kring, 1 Mo. App. 438, 441-442 (1876); Lee v. State, 51 Miss. 566, ___ (1875), overruled on other grounds, Wingo v. State, 62 Miss. 311, ___ (1884); People v. Harrington, 42 Cal. 165, 168-169 (1871).

[121] *fn6 Pennsylvania first addressed the question of the shackling of a defendant in the context of a grand jury proceeding. It too concluded that deference was required, finding that the appropriate security for the defendant's transport was best left to the officers guarding him. Commonwealth v. Weber, supra, at 65, 31 A., at 484.

[122] *fn7 See, e.g., State v. Franklin, 97 Ohio St. 3d 1, 18-19, 776 N. E. 2d 26, 46 (2002) (decision to shackle a defendant is left to the sound discretion of a trial court); Commonwealth v. Agiasottelis, 336 Mass. 12, 16, 142 N. E. 2d 386, 389 (1957) ("[A] judge properly should be reluctant to interfere with reasonable precautions which a sheriff deems necessary to keep secure prisoners for whose custody he is responsible and, if a judge fails to require removal of shackles, his exercise of a sound discretion will be sustained"); Rayburn v. State, 200 Ark., at 920-921, 141 S. W. 2d, at 536 ("Trial Courts must be allowed a discretion as to the precautions which they will permit officers ... to take to prevent the prisoner's escape, or to prevent him from harming any person connected with the trial, or from being harmed"); State v. Hanrahan, 49 S. D., at 436, 207 N. W., at 225 ("It is the universal rule that while no unreasonable restraint may be exercised over the defendant during his trial, yet it is within the discretion of the trial court to determine what is and what is not reasonable restraint"); McPherson v. State, 178 Ind., at 585, 99 N. E., at 985 ("[W]hether it is necessary for a prisoner to be restrained by shackles or manacles during the trial must be left to the sound discretion of the trial judge").

[123] *fn8 See, e.g., Commonwealth v. Millen, 289 Mass., at 477-478, 194 N. E., at 477-478.

[124] *fn9 See, e.g., Smith v. State, 773 P. 2d, at 141 ("The general law applicable in situations where jurors see a handcuffed defendant is that, absent a showing of prejudice, their observations do not constitute grounds for a mistrial"); People v. Martin, 670 P. 2d 22, 25 (Colo. App. 1983) (shackling is not inherently prejudical) State v. Gilbert, 121 N. H. 305, 310, 429 A. 2d 323, 327 (1981) (shackling is not inherently prejudicial); State v. Moore, 45 Ore. App. 837, 840, 609 P. 2d 866, 867 (1980) ("[A]bsent a strongly persuasive showing of prejudice to the defendant and that the court abused its discretion, we will not second guess [the trial court's] assessment of its security needs"); State v. Palmigiano, 112 R. I., at 358, 309 A. 2d, at 861; State v. Polidor, 130 Vt., at 39, 285 A. 2d, at 773; State v. Norman, 8 N. C. App. 239, 242, 174 S. E. 2d 41, 44 (1970); State v. Brooks, 44 Haw., at 84-86, 352 P. 2d, at 613-614; State v. Brewer, 218 Iowa 1287, ___, 254 N. W. 834, 840 (1934) ("[T]his court cannot presume that the defendant was prejudiced because he was handcuffed"), overruled by State v. Wilson, 406 N. W. 2d 442, 449, and n. 1 (Iowa 1987); but see State v. Coursolle, 255 Minn., at 389, 97 N. W. 2d, at 476-477 (shackling is inherently prejudicial).

[125] *fn10 See, e.g., ibid. (defining "immediate necessity" as "some reason based on the conduct of the prisoner at the time of trial"); Blair v. Commonwealth, 171 Ky., at 327-328, 188 S. W., at 393; State v. Temple, 194 Mo. 237, ___, 92 S. W. 869, 872 (1906) (citing State v. Kring, 64 Mo. 591, 592-593 (1877)).

[126] *fn11 See, e.g., Commonwealth v. Chase, 350 Mass. 738, 740, 217 N. E. 2d 195, 197 (1966) (attempted escape on two prior occasions, plus the serious nature of the offense for which defendant was being tried supported use of restraints); People v. Thomas, 1 Mich. App., at 126, 134 N. W. 2d, at 357 (prison escape for which defendant was on trial sufficed to permit use of shackles); People v. Bryant, 5 Misc. 2d 446, 448, 166 N. Y. S. 2d 59, 61 (1957) (attempts to escape "on prior occasions while in custody," among other things, supported the use of restraints).

[127] *fn12 See, e.g., State v. Roberts, 86 N. J. Super. 159, 165, 206 A. 2d 200, 204 (App. Div. 1965) ("In addition to a defendant's conduct at the time of trial, ... defendant's reputation, his known criminal record, his character, and the nature of the case all must be weighed" in deciding whether to shackle a defendant (second emphasis added)); State v. Moen, 94 Idaho, at 480-481, 491 P. 2d, at 861-862 (that three defendants were on trial for escape, had been convicted of burglary two days before their trial for escape, and were being tried together was sufficed to uphold trial court's shackling him); State v. McKay, 63 Nev., at 164, 165 P. 2d, at 409 (prior conviction for burglary and conviction by army court-martial for desertion, among other things, taken into account); People v. Deveny, 112 Cal. App. 2d 767, 770, 247 P. 2d 128, 130 (1952) (defendant previously convicted of escape from prison); State v. Franklin, supra, at 19, 776 N. E. 2d, at 46-47 (defendant just convicted of three brutal murders).

[128] *fn13 See, e.g., State v. Roberts, supra, at 165-167, 206 A. 2d, at 204.

[129] *fn14 See, e.g., State v. Franklin, supra, at 18-20, 776 N. E. 2d, at 46-47 (defendant "had stabbed a fellow inmate with a pen six times in a dispute over turning out a light").

[130] *fn15 See, e.g., Frye v. Commonwealth, 231 Va., at 381, 345 S. E. 2d, at 276 (permitting consideration of a "defendant's temperament"); De Wolf v. State, 95 Okla. Cr. 287, 293-294, 245 P. 2d 107, 114-115 (1952) (permitting consideration of both the defendant's "character" and "disposition toward being a violent and dangerous person, both to the court, the public and to the defendant himself").

[131] *fn16 See, e.g., Frye v. Commonwealth, supra, at 381-382, 345 S. E. 2d, at 276 ("A trial court may consider various factors in determining whether a defendant should be restrained" including his "physical attributes"); State v. Dennis, 250 La. 125, 137-138, 194 So. 2d 720, 724 (1967) (no prejudice from "defendant's appearance in prisoner garb, handcuffs, and leg-irons before the jury venire" where it was a " `prison inmate case' " and "defendant was a vigorous man of twenty-eight or twenty-nine years of age, about six feet tall, and weighing approximately two hundred and twenty to two hundred and twenty-five pounds").

[132] *fn17 Dyas v. Poole, 309 F. 3d 586, 588-589 (CA9 2002) (per curiam) (relying on Holbrook) amended and superseded by 317 F. 3d 934 (2003) (per curiam); Harrell v. Israel, 672 F. 2d 632, 635 (CA7 1982) (per curiam) (relying on Allen and Estelle); State v. Herrick, 324 Mont. 76, 80-81, 101 P. 3d 755, 758-759 (2004) (relying on Allen and Holbrook); Hill v. Commonwealth, 125 S. W. 3d 221, 233 (Ky. 2004) (relying on Holbrook); State v. Turner, 143 Wash. 2d 715, 724-727, 23 P. 3d 499, 504-505 (2001) (en banc) (relying on State v. Finch, 137 Wash. 2d 792, 842, 975 P. 2d 967, 997-999 (1999) (en banc), which relies on Allen, Estelle, and Holbrook); Myers v. State, 2000 OK CR 25, ¶¶46-47, 17 P. 3d 1021, 1033 (relying on Owens v. State, 1982 OK CR 1, 187, ¶¶4-6, 654 P. 2d 657, 658-659, which relies on Estelle); State v. Shoen, 598 N. W. 2d 370, 375-376 (Minn. 1999) (relying on Allen, Estelle, and Holbrook); Lovell v. State, 347 Md. 623, 638-639, 702 A. 2d 261, 268-269 (1997) (same); People v. Jackson, 14 Cal. App. 4th 1818, 1829-1830, 18 Cal. Rptr. 2d 586, 593-594 (1993) (relying on People v. Duran, 16 Cal. 3d 282, 290-291, 545 P. 2d 1322, 1327 (1976), which relies on Allen); Cooks v. State, 844 S. W. 2d 697, 722 (Tex. Crim. App. 1992) (relying on Marquez v. State, 725 S. W. 2d 217, 230 (Tex. Crim. App. 1987) (en banc), overruled on other grounds, Moody v. State, 827 S. W. 2d 875, 892 (Tex. Crim. App. 1992), which relies on Holbrook); State v. Tweedy, 219 Conn. 489, 505, 508, 594 A. 2d 906, 914, 916 (1991) (relying on Estelle and Holbrook); State v. Crawford, 99 Idaho 87, 95-96, 577 P. 2d 1135, 1143-1144 (1978) (relying on Allen and Estelle); People v. Brown, 45 Ill. App. 3d 24, 26, 358 N. E. 2d 1362, 1363 (1977) (same); State v. Tolley, 290 N. C. 349, 367, 226 S. E. 2d 353, 367 (1976) (same). See also, e.g., Anthony v. State, 521 P. 2d, at 496, and n. 33 (relying on Allen for the proposition that manacles, shackles, and other physical restraints must be avoided unless necessary to protect some manifest necessity); State v. Brewster, 164 W. Va., at 180-181, 261 S. E. 2d, at 81-82 (relying on Allen and Estelle to overrule prior decision permitting reviewing court to presume that the trial court reasonably exercised its discretion even where the trial court had not made findings supporting the use of restraints); Asch v. State, 62 P. 3d 945, 963-964 (Wyo. 2003) (relying on Holbrook and Estelle to conclude that shackling is inherently prejudicial, and on Allen to conclude that shackling offends the dignity and decorum of judicial proceedings); State v. Wilson, 406 N. W. 2d, at 449, n. 1 (relying in part on Holbrook to hold that visible shackling is inherently prejudicial, overruling prior decision that refused to presume prejudice); State v. Madsen, 57 P. 3d 1134, 1136 (Utah App. 2002) (relying on Holbrook for the proposition that shackling is inherently prejudicial).

[133] *fn18 See, e.g., Harlow v. State, 105 P. 3d 1049, 1060 (Wyo. 2005) (where jury knew that the prisoner and two witnesses were all inmates, no prejudice from seeing them in shackles); Hill v. Commonwealth, 125 S. W. 3d, at 236 ("The trial court's admonition and the fact that the jury already knew Appellant was a convicted criminal and a prisoner in a penitentiary mitigated the prejudice naturally attendant to such restraint"); State v. Woodward, 121 N. H. 970, 974, 437 A. 2d 273, 275 (1981) (where jury already aware that the defendant was confined, any prejudice was diminished); see also Payne v. Commonwealth, 233 Va. 460, 466, 357 S. E. 2d 500, 504 (1987) (no error for inmate-witnesses to be handcuffed where jurors were aware that they "were ... convicted felons and that the crime took place inside a penal institution"); State v. Moss, 192 Neb. 405, 407, 222 N. W. 2d 111, 113 (1974) (where defendant was an inmate, his appearance at arraignment in leg irons did not prejudice him); Jessup v. State, 256 Ind. 409, 413, 269 N. E. 2d 374, 376 (1971) ("It would be unrealistic indeed ... to hold that it was reversible error for jurors to observe the transportation of an inmate of a penal institution through a public hall in a shackled condition"); People v. Chacon, 69 Cal. 2d 765, 778, 447 P. 2d 106, 115 (1968) (where defendant was charged with attacking another inmate, "the use of handcuffs was not unreasonable"); State v. Dennis, 250 La., at 138, 194 So. 2d, at 724 (no prejudice where defendant of considerable size appeared in prisoner garb, leg irons, and handcuffs before the jury where it was a " `prison inmate case' ").

[44] Appellant next argues the trial court abused its discretion with the admission of victim-impact evidence. Specifically, he asserts that an extensive family tree from the victim's family, a narrative statement by the victim's son, and an alleged hearsay statement that the victim's granddaughter was worried and afraid to come to court were excessive and prejudicial.

[45] "[T]he trial court is vested with broad discretion in determining the admissibility of evidence offered at the penalty stage of a capital case."*fn19 Victim impact evidence is admissible under the United States and Missouri Constitutions, and the State is permitted to show that a victim is not a faceless stranger and that his or her death represents a unique loss to society and to the family.*fn20 "[V]ictim impact evidence violates the constitution only if it is so unduly prejudicial that it renders the trial fundamentally unfair."*fn21

[46] The chart depicting the victim's family tree, with 46 named family members, was found by the trial court to be less prejudicial than having each of these individuals testify. The chart did contain the names of several family members who had not yet been born at the time of the murders and spouses that were no longer part of the family. This information was provided to the jury; however, the jury was free to decide what impact, if any, the victims' deaths had on those absent family members.

[47] The narrative statement, read by the victims' son, was intended to help prevent him from breaking down emotionally or from making impermissible statements. It was the same statement that was read at Appellant's first trial, and being narrative as opposed to interrogative does not constitute a per se abuse of discretion.*fn22 As Appellant points out, this statement did include the remark, "How senseless this was to take the nucleus of our family away." However, this remark is not inconsistent with other remarks contained within the narrative, and Appellant provides nothing more than speculation in his attempt to claim that this narrative, or the individual statement, was in any way prejudicial.

[48] Finally, with regard to the victims' daughter's testimony referencing the eleven-year-old granddaughter's fear of coming to court, this would only be a natural response for any child having to attend a courtroom proceeding. Appellant again fails to substantiate his clam that this statement would somehow allow jurors to speculate that her fear was related solely to Appellant's presence in the courtroom.

[49] In short, all of Appellant's assertions regarding the victim impact evidence are unsubstantiated and based totally in speculation. Defendant's bare assertions of prejudice are not sufficient to establish fundamental unfairness nor do they demonstrate how the outcome of the case was substantively altered.

[50] VII.

[51] In his sixth point, Appellant argues that the trial court abused its discretion by allowing the State, over objection, to personalize its closing argument. Appellant claims that the prosecutor urged the jurors to "relive" the final ten minutes of the victims' lives when they begged for mercy while the Appellant contemplated if he would murder them. Appellant believes that allowing this alleged improper argument deprived him of rights to due process, a fair trial and impartial jury, and freedom from cruel and unusual punishment.

[52] "The trial court has broad discretion in controlling the scope of closing argument and the court's rulings will be cause for reversal only upon a showing of abuse of discretion resulting in prejudice to the defendant."*fn23 "Improper personalization in closing argument occurs when the argument suggests a personal danger to the jurors or their families."*fn24 Arguing for jurors to supplant themselves in the position of a party or a victim is also improper personalization that can only arouse fear in the jury.*fn25

[53] In Appellant's closing argument, defense counsel stated that this was not a planned murder and that Appellant was scared and nervous. Counsel also states, ". . . and he made a lousy, lousy decision. He never should've shot. He never should be been [sic] in there in the first place. He never should've, but it's a split second and on the tape it says he went there to rob."

[54] In response to this argument that the murder was not planned, the prosecutor in his closing argument states, "Think about the evidence. Think about [Appellant] with the gun in his hand, James and Zelma Long lying on the bed. Ten minutes doesn't seem that long. See how long that is just when you're sitting in the jury room. Think about them on their stomachs begging for their lives for ten minutes."

[55] The evidence of the ten minutes elapsing between the time the victims were ordered to lay on the bed in the positions described and the time of their being shot was properly in the record, and it was not improper to reference these facts in closing argument. The specific reference to these facts in the prosecutor's statements above addressed the credibility of Appellant's claim that the murders were committed without more than a split second's worth of thought. The trial court did not abuse its discretion when overruling Appellant's objection, and there is no evidence, beyond speculation, that the decision to allow the prosecutor's argument to proceed resulted in prejudice to the defendant.

[56] VIII.

[57] Appellant next asserts that the trial court abused its discretion when overruling his objection to striking venirepersons Richard Overmann and Michael Schaeffer for cause. However, "[v]enirepersons may be excluded from the jury when their views would prevent or substantially impair the performance of their duties as jurors in accordance with the court's instructions and their oaths.*fn26 "A challenge for cause will be sustained if it appears that the venireperson cannot consider the entire range of punishment, apply the proper burden of proof, or otherwise follow the court's instructions in a first degree murder case."*fn27

[58] The transcripts show that both prospective jurors indicated that they had a problem with considering the death penalty and that they believed punishment should be limited to life imprisonment without parole. There was serious equivocation expressed by Mr. Overmann and Mr. Schaeffer about their ability to follow the instructions of the court and their ability to consider and recommend the full range of punishment for Appellant. "A juror's equivocation about his ability to follow the law in a capital case together with an equivocal statement that he could not sign a verdict of death can provide a basis for the trial court to exclude the venireperson from the jury."*fn28 The trial court did not abuse its discretion when sustaining the prosecutor's motion to strike.

[59] IX.

[60] Appellant raises, as his eighth point, this Court's independent proportionality review and advocates for reducing his sentence to life imprisonment without parole. Under section 565.035.3, this Court is required to determine whether:

[61] (1) The sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor;

[62] (2) The evidence supports the jury's or judge's finding of a statutory aggravating circumstance as enumerated in subsection 2 of section 565.032 and any other circumstance found;

[63] (3) The sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime, the strength of the evidence, and the defendant.

[64] Having thoroughly reviewed the record, this Court concludes that there is no evidence to suggest that the punishment imposed was a product of passion, prejudice, or any other arbitrary factor.

[65] The trial court's findings are next reviewed to determine if the evidence supports, beyond a reasonable doubt, the existence of an aggravating circumstance and any other circumstance found. In Appellant's first trial, the jury unanimously found six statutory aggravating circumstances as a basis for considering the two death sentences.*fn29 The same evidence was heard in Appellant's retrial of the penalty phase, and it amply supports the statutory aggravators found by the jury when delivering its recommendation for the death sentence.

[66] Finally, this Court has upheld sentences of death in similar cases where the defendant murdered multiple victims, acted for pecuniary gain, or where the defendant sought to eliminate possible witnesses to avoid a lawful arrest.*fn30 The death sentences in this case are neither excessive nor disproportionate to the penalty imposed in similar cases, considering the crime, the strength of the evidence, and the defendant.

[67] X.

[68] Appellant finally argues that the trial court lacked jurisdiction and authority to sentence Appellant because the state failed to charge him with "aggravated first-degree murder." Appellant contends that failure to plead facts, as listed in section 565.030.4, creates a charge of murder whereby the maximum penalty was life in prison.

[69] This Court has addressed this claim numerous times before. The omission of statutory aggravators from an indictment charging the defendant with first-degree murder does not deprive the sentencing court of jurisdiction to impose the death penalty.*fn31 Missouri's statutory scheme recognizes a single offense of murder with maximum sentence of death, and the requirement that aggravating facts or circumstances be present to warrant imposition of death penalty does not have the effect of increasing the maximum penalty for the offense.*fn32 Having examined this claim thoroughly and finding no error of law, an extended opinion on these issues would have no precedential value.*fn33

[70] XI.

[71] The judgment is affirmed.

[72] All concur.


Opinion Footnotes

[73] *fn1 Appellant was also convicted of two counts of armed criminal action, one count of first-degree robbery, and one count of first-degree burglary for which he received, respectively, concurrent life sentences, consecutive thirty-year sentences, and a fifteen-year sentence.

[74] *fn2 State v. Deck, 994 S.W.2d 527 (Mo. banc 1999).

[75] *fn3 Deck v. State, 68 S.W.3d 418 (Mo. banc 2002).

[76] *fn4 Smulls v. State, 71 S.W.3d 138, 148 (Mo. banc 2002).

[77] *fn5 State v. Dunn, 817 S.W.2d 241, 243 (Mo. banc 1991).

[78] *fn6 State v. Armentrout, 8 S.W.3d 99, 108 (Mo. banc 1999).

[79] *fn7 In re Care and Treatment of Spencer, 123 S.W.3d 166, 168 (Mo. banc 2003).

[80] *fn8 Id.

[81] *fn9 State v. Hall . 982 S.W.2d 675, 685 (Mo. banc 1998); State v. Brooks, 960 S.W.2d 479 (Mo. banc 1997); State v. Clements, 849 S.W.2d 640, 647 (Mo. App. 1993).

[82] *fn10 Rule 30.20.

[83] *fn11 All statutory citations refer to RSMo 2000 unless otherwise noted.

[84] *fn12 State v. Taylor, ____ S.W.3d ____ (Mo. banc 2004), slip opinion pages 13-14, (SC85235, decided May 11,2004).

[85] *fn13 Lyons v. State, 39 S.W.3d 32, 43 (Mo. banc 2001).

[86] *fn14 Rule 30.25.

[87] *fn15 Appellant also brought a claim of instructional error with regard to MAI-CR 3d 302.02, but expressly abandoned that claim per letter to this Court dated March 2, 2004.

[88] *fn16 Rules 28.03 and 30.20. See also State v. Wurtzberger, 40 S.W.3d 893, 897-98 (Mo. banc 2001).

[89] *fn17 State v. Baker, 103 S.W.3d 711, 723 (Mo. banc 2003).

[90] *fn18 MAI-CR 3d 300.04.2.

[91] *fn19 State v. Johns, 34 S.W.3d 93, 112 (Mo. banc 2000).

[92] *fn20 Deck, 994 S.W.2d at 538-39; Payne v. Tennessee, 501 U.S. 808, 822-25 (1991).

[93] *fn21 Id.

[94] *fn22 State v. Clark, 693 S.W.2d 137, 142 (Mo. App. 1985). The form of witness examination at trial, whether in a narrative or interrogatory manner, is also a matter committed to discretion of the trial court. Id . On direct appeal from Appellant's first convictions and sentences, this Court rejected Appellant's argument that the narrative statement produced emotional outbursts so prejudicing his trial that a mistrial was warranted. Deck, 994 S.W.2d at 538-39.

[95] *fn23 Deck, 994 S.W.2d at 543.

[96] *fn24 State v. Bristol, 98 S.W.3d 107, 115 (Mo. App. 2003).

[97] *fn25 State v. Williams, 97 S.W.3d 462, 474 (Mo. banc 2003).

[98] *fn26 State v. Smith, 32 S.W.3d 532, 544 (Mo. banc 2000).

[99] *fn27 Id.

[100] *fn28 Id.

[101] *fn29 The jury found: 1) that each murder was committed while the defendant was engaged in the commission of another unlawful homicide, section 565.032.2(2); 2) that the murders were committed for the purpose of receiving money or any other thing of monetary value, section 565.032.2(4); 3) that the murders were outrageously and wantonly vile, horrible, and inhuman in that they involved depravity of mind, section 565.032.2(7); 4) that the murders were committed for the purpose of avoiding a lawful arrest, section 565.032.2(10); 5) that the murders were committed while defendant was engaged in the perpetration of burglary, section 565.032.2(11); and 6) that the murders were committed while defendant was engaged in the perpetration of robbery, section 565.032.2(11). Deck, 994 S.W.2d at 545.

[102] *fn30 State v. Ringo, 30 S.W.3d 811(Mo. banc 2000); State v. Worthington, 8 S.W.3d 83, 93 (Mo. banc 1999); State v. Middleton, 998 S.W.2d 520 (Mo. banc 1999).

[103] *fn31 State v. Cole, 71 S.W.3d 163, 171 (Mo. banc 2002).

[104] *fn32 Id. See also State v. Tisius, 92 S.W.3d 751, 766 (Mo. banc 2002).

[105] *fn33 Rule 30.25.