452 F.2d 1174 (10th Cir. 1972), 380-70, Watt v. Page

Docket Nº:380-70.
Citation:452 F.2d 1174
Party Name:Henry Edward WATT, Appellant, v. Ray H. PAGE, Warden, Oklahoma State Penitentiary, and State of Oklahoma, Appellees.
Case Date:January 07, 1972
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 1174

452 F.2d 1174 (10th Cir. 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.

See 92 S.Ct. 1520.

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.

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

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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...

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