Watt v. Page

• Decision Date: 17 April 1972
• Docket Number: No. 380-70.,380-70.
• Citation: 452 F.2d 1174
• Parties: Henry Edward WATT, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, and State of Oklahoma, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

452 F.2d 1174 (1972)

Henry Edward WATT, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, and State of Oklahoma, Appellees.

No. 380-70.

United States Court of Appeals, Tenth Circuit.

January 7, 1972.

Certiorari Denied April 17, 1972.

Thomas T. Crumpacker, of Wood, Ris & Hames, Denver, Colo., for appellant.

H. L. McConnell, Asst. Atty. Gen. (Larry Derryberry, Atty. Gen., of Oklahoma, with him on the brief), for appellees.

Before SETH and HOLLOWAY, Circuit Judges, and KERR, District Judge.

Certiorari Denied April 17, 1972. See 92 S.Ct. 1520.

SETH, Circuit Judge.

This is is a habeas corpus proceeding which was filed in the United States District Court for the Eastern District of Oklahoma. The petition was denied without hearing, and this appeal was taken.

The record shows that petitioner was convicted in 1967 of selling five match boxes of marijuana to a federal agent for twenty-five dollars. The petitioner had previously been convicted of a felony, and under the Oklahoma recidivist statute he was subject to a sentence by the jury on the marijuana charge of not less than ten years, but with no maximum prescribed. The jury found defendant guilty, and under Oklahoma procedure, the same jury after a further hearing sentenced him to thirty-seven years imprisonment.

On this appeal the petitioner asserts that the sentence constituted cruel and unusual punishment; that he did not have effective assistance of counsel; that the jury sentencing violated due process; and the fact that he was tried while dressed in a prison uniform was a violation of due process of law.

We find no merit in the points concerning the assistance of counsel, the sentencing procedure, nor the cruel and unusual punishment. However, the appearance in a jail uniform as it relates to due process is a matter which requires a remand for further proceedings.

The petitioner urges that the fact that he appeared at the trial in coveralls on which was stencilled "Oklahoma County Jail 44" prevented him from having a fair and impartial trial. No objection relative to this issue was made during the course of the trial. The matter was first raised during the argument of a motion for new trial.

There have been several recent cases concerning the consequences of a trial of a defendant in a jail uniform. The Fifth Circuit in a habeas corpus case arising in Texas, Hernandez v. Beto, 443 F.2d 634, cert. denied 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (40 U.S.L.W. 3175), considered such a trial. There the defendant at the time he was jailed was wearing ordinary street clothes, but was tried in a tee shirt and dungarees stamped "Harris County Jail." In this cited case neither the defendant nor his attorney made any request that the defendant wear his own clothes, which were available, nor did they object to the appearance in the jail uniform. The Court of Appeals stated in the opinion that the attorney made no objection because it was a common practice to try defendants who had been held in jail in prison uniform, and a request to otherwise appear would have been futile. The trial court in this cited case agreed that the petitioner's appearance could cause the jury to draw unfavorable inferences therefrom. The Circuit Court also said:

"The District Court agreed with counsel\'s evaluation of the situation and correctly characterized as `rather absolute language\' what we said in Brooks v. Texas, 5 Cir. 1967, 381 F.2d 619, that: `It is inherently unfair to try a defendant for a crime while garbed in his jail uniform, especially when his civilian clothing is at hand. No insinuations, indications or implications suggesting guilt should be displayed before the jury, other than admissible evidence and permissible argument.\' Id. at 624. The trial judge went on to say: `What was inherently unfair in Brooks v. Texas, supra, is also inherently unfair in this case. There is little doubt in this Court\'s mind that negative inferences can be, and more than likely are, created in the minds of the jurors when the accused is brought into court and tried in prison clothing.\' We agree."

The Fifth Circuit also there considered the argument that the error was harmless, and held the test to be applied was as stated in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, and in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, this standard being whether or not the court could say that the error was harmless beyond a reasonable doubt, considering the overwhelming evidence factor introduced by Harrington.

As to Hernandez v. Beto, we must say that we do not agree with the Fifth Circuit to the extent that an appearance in "jail clothing," if established, leads to any automatic result if its opinion so infers.

The Fifth Circuit had the question before it in Brooks v. Texas, 381 F.2d 619, as indicated in the quotation above. The Pennsylvania court in Commonwealth v. Keeler, 216 Pa.Super. 193, 264 A.2d 407, reached the same result, and mentioned that an appearance in jail uniform "insinuates" that the defendant has been arrested for other charges than the one for which he is then being tried. See also Eaddy v. People, 115 Colo. 488, 174 P.2d 717 (Colo.), where reference is made to the humiliation the defendant must suffer when appearing in a jail uniform.

There is substantial authority contrary to that above considered. See Xanthull v. Beto, 307 F.Supp. 903 (S.D. Texas); Gregory v. United States, 365 F.2d 203 (8th Cir.), a case involving handcuffs; Thomas v. State, 451 S.W.2d 907 (Texas Cr.App.), and McFalls v. Peyton, 270 F.Supp. 577 (W.D.Va.), (jail clothing), affirmed at 401 F.2d 890 (4th Cir.).

We do not hold that the nature of the clothing worn by the petitioner at his trial was inherently prejudicial of his right to a fair and impartial trial. The Supreme Court in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284, expresses two basic holdings, first: that ". . . before a federal...