Court: Wearing of stun belt must be decided by judges

Friday, May 27, 2005 | 9:04 a.m.

CARSON CITY -- Judges, not law enforcement officers, must decide if an unruly defendant in a criminal trial must wear a stun belt to stop disruptive behavior during trial, the Nevada Supreme Court said Thursday.

The court also said District Court judges must conduct a hearing to determine if there is an "essential state interest" in requiring the device to be attached to a defendant.

The court's ruling came in the case of Roderick L. Hymon, who was convicted of robbery with use of a deadly weapon and other crimes in a purse snatching in an auto repair shop in Las Vegas and threatening his pursuers with a knife.

After his arrests Hymon was uncooperative and made several outbursts in court. District Judge John McGroarty granted Hymon's request to represent himself at trial.

Hymon was not cuffed or shackled, but the correctional officer told the judge the defendant had a stun belt attached under his shirt.

During his opening argument, Hymon opened his clothes and revealed the device. He complained that his rights were being violated and if he did something the bailiff didn't like, he would be electrocuted.

Outside the presence of the jury, McGroarty held a hearing and revealed Hymon had written a letter in which he threatened to kill the judge if he didn't recuse himself from the trial.

Hymon complained that the court should have held a hearing before ordering him to wear the belt, but McGroarty said he did not need to hold a hearing upon receiving such a threat.

The Supreme Court, while upholding the conviction, said judges must hold a hearing to determine if the defendant is to be restrained.

"A defendant should not be restrained except as a last resort," the court said.

The three-member panel in a decision written by Justice James Hardesty said the issue raises several constitutional concerns. It noted the U.S. Supreme Court recently ruled the Constitution forbids the use of visible shackles during a death penalty case unless added security is required.

Hardesty said a stun belt poses the risk of interfering with the defendant's right to talk with his lawyer and especially if he is representing himself.

"The stun belt may cause the defendant concern regarding voicing a vehement objection or actively cross-examining a witness, and it may distract the defendant's attention from the proceedings," the ruling said.

The ruling said the defendant could feel anxiety that any movement may result in an electronic jolt and it could affect his right to participate in his defense and take the stand in his own defense.

The Supreme Court said the District Court, after holding a hearing, must decide if there is a less restrictive means of restraint, address the possibility of accidental discharge, inquire into the belt's potential adverse psychological effects on the defendant and consider the health of the individual.

It said the District Court judge must place its findings on the record so the Nevada Supreme Court can decide if there was an abuse of discretion.

In this case, the court said McGroarty's failure to hold a hearing was "harmless error."

The stun belts, which can be activated remotely, deliver a high voltage current through the body. The court said the jolt may cause incapacitation, severe pain, uncontrolled defecation or urination, muscular weakness, heartbeat irregularities or seizures.

Hymon, now 38, was sentenced also as a habitual criminal and was given several life terms. His first eligibility for parole comes up in 2012.