People v. Shaw, Docket No. 2224

Citation7 Mich.App. 187,151 N.W.2d 381
Decision Date27 June 1967
Docket NumberNo. 2,Docket No. 2224,2
PartiesPEOPLE of the State of Michigan, Plaintiff and Appellee, v. Herschel M. SHAW, Defendant and Appellant
CourtCourt of Appeal of Michigan — District of US

Douglas M. Philpott, Flint, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty. Genesee County, Flint, for appellee.

Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.

HOLBROOK, Presiding Judge.

Defendant, Herschel Shaw, participated with 2 others in stealing a television set and 2 stereo record players from a Flint business establishment during the evening of May 15, 1963. He was subsequently convicted by jury of the crime of breaking and entering in the nighttime 1 and sentenced to a term of 5 to 15 years at the State Prison of Southern Michigan at Jackson.

The pertinent facts to this review are as follows: Defendant Shaw's trial began with the impaneling of a jury in the late afternoon of October 15, 1963. He attended this selection of a jury with codefendant Smith, codefendant Wright having previously entered a plea of guilty. Both Shaw and Smith were dressed in striped, county jail uniforms, however, no objection as to their appearance was raised by defense counsel that afternoon.

The following morning Shaw and Smith appeared for trial, again wearing the striped, county jail uniforms. After the jury entered the courtroom but before the prosecution's opening statement was made, defendant Shaw's counsel asked the court to excuse the jury. When the jury had retired, he made a motion for a mistrial claiming prejudicial denial of a fair and impartial trial. Defense counsel stated in part:

'I believe that the minds of the jury are unduly prejudiced towards Mr. Smith and Mr. Shaw due to the fact that they have been brought into court in county jail prison uniforms; that these men have clothes that they can come in here like any other human beings, not come in here dressed like criminals. I think that this presumption of innocence is tarnished somewhat when the jury can sit there and see these men in striped uniforms, and I think that, based upon the fact that they may not be granted a fair and impartial hearing, that this court should declare a mistrial.'

The prosecutor called the trial court's attention to the fact that no objection to the attire of defendants had been made the previous afternoon and that he personally did not believe the jury would be prejudiced. Defense counsel then stated:

'As to the reason why it wasn't brought to the attention of the court this morning before the jury sat down is because the jury had an opportunity to see them yesterday. Now, we were somewhat pushed for time. Maybe it was an oversight on my part, but the chances are I didn't think of it then. But as far as what--In the prosecutor's opinion--He cannot substitute his opinion for the opinion of the jurors any more than I can. I believe that this would happen. I have no assurance that this would. Now, I would suggest that--A suggestion that the jury disregard this or ask them a question, would they be prejudiced by these men coming into court in this uniform, invariably, the answer would be no. We can't get inside their mind. The presumption of innocence, in my opinion, is tarnished the minute they walk in here. They are prisoners. The average person thinks if a person is under arrest, he has committed a crime, he is guilty of something, otherwise he wouldn't be here.'

The motion for a mistrial was denied, the trial court indicating that defense counsel had known for some time that the case had been set for trial and could have arranged for defendants to appear clothed as he thought proper. Further, the court indicated the lateness of the motion. The trial then proceeded terminating in the convictions of Shaw and Smith. Only defendant Shaw has appealed.

The sole question for review is whether there was a denial of defendant Shaw's right to a fair and impartial trial when he appeared for jury selection and trial attired in a striped, county jail uniform.

In the absence of any Michigan cases directly in point, defendant urges this Court to adopt the rule of law found in 21 Am.Jur.2d, Criminal Law, § 239, pp. 275, 276.

'Trial of defendant in prison garb.

'Since the defendant, pending and during his trial, is still presumed innocent, he is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may otherwise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict.' (Footnotes omitted)

Eaddy v. People (1946), 115 Colo. 488, 174 P.2d 717, one of 3 cases cited in support of the above rule of law, involved the trial of a Negro solider wearing a United States Army uniform at the time of arrest but wearing striped overalls with the words 'county jail' on them at trial. The Colorado Supreme Court found prejudicial error where objection was made and a request for the trial court yo direct the proper officer to return defendant to the courtroom properly attired was overruled. It appears that the objection and request were made immediately upon defendants being brought into court. Notwithstanding the fact that it lacked precedent that court stated as follows:

'Ordinarily a defendant may be brought to trial in the garments in which he is apprehended unless he himself procures other fit garments, in which case he may wear them. If there is any substantial reason why a defendant should not stand trial in garb so worn or procured by him, then, after opportunity to procure proper clothing, he may be tried in any fit and decent clothing furnished by the jailor, and conventionally made overalls of customary striped or other material should be adequate. The decision as to proper clothing should be within the sound discretion of the trial court which has the custody of the defendant; * * *

'The presumption of innocence requires the garb of innocence, and regardless of the ultimate outcome, or of the evidence awaiting presentation, every defendant is entitled to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may otherwise require. Such right was not given this defendant.'

On appeal, the defendant in People v. Thomas (1965), 1 Mich.App. 118, 134 N.W.2d 352, raised in issue whether his appearance in court in prison uniform and in chains prejudiced the jury. We admitted there that it would have been better had he been brought into court in...

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7 cases
  • People v. Shaw, 9
    • United States
    • Michigan Supreme Court
    • February 3, 1969
    ...of was not so gross as to have deprived defendant of a fair trial so that his conviction was a miscarriage of justice. 7 Mich.App. 187, 151 N.W.2d 381. The Court of Appeals stated, referring to the trial court (p. 192, 151 N.W.2d p. 'That a court his discretion as to the criminal defendant'......
  • Carroll v. State
    • United States
    • Tennessee Court of Criminal Appeals
    • August 4, 1975
    ...to see him in prison or jail clothing. Xanthull v. Beto, supra; Williams v. Beto, 364 F.Supp. 335 (S.D.Tex.1973); People v. Shaw, 7 Mich.App. 187, 151 N.W.2d 381 (1967); Lenhart v. State, 503 P.2d 918 (Okl.Crim.App.1972); Atkins v. State, 210 So.2d 9, 10, 11 (Fla.App.1968). Where no prejudi......
  • People v. Porter, Docket No. 54660
    • United States
    • Court of Appeal of Michigan — District of US
    • September 22, 1982
    ...428] voir dire. Other Michigan decisions have dealt with untimely objections to being tried in prison clothing. People v. Shaw, 7 Mich.App. 187, 151 N.W.2d 381 (1967), aff'd 381 Mich. 467, 164 N.W.2d 7 (1969); and People v. Harris, 80 Mich.App. 228, 263 N.W.2d 40 (1977), lv. den. 406 Mich. ......
  • State v. Hendrick
    • United States
    • North Dakota Supreme Court
    • January 23, 1969
    ...reversal in the instant case. One of the most recent decisions we have been able to find on this issue is that of People v. Shaw, 7 Mich.App. 187, 151 N.W.2d 381 (1967). In that case the Michigan court was urged, as we are urged, to adopt the rule of law stated in 21 Am.Jur.2d Criminal Law ......
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