Box v. State, CR 01-698.

CourtSupreme Court of Arkansas
Writing for the CourtJim Hannah
Citation348 Ark. 116,71 S.W.3d 552
PartiesTerrence D. BOX v. STATE of Arkansas.
Docket NumberNo. CR 01-698.,CR 01-698.
Decision Date04 April 2002
71 S.W.3d 552
348 Ark. 116
Terrence D. BOX
STATE of Arkansas.
No. CR 01-698.
Supreme Court of Arkansas.
April 4, 2002.

[71 S.W.3d 554]

James H. Phillips, Little Rock, for appellant.

Mark Pryor, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., Little Rock, for appellee.


Terrence D. Box was convicted of aggravated robbery and first-degree battery, and sentenced to twenty-five and ten years respectively. Box raised four issues on appeal before the court of appeals. He argues that (1) there was insufficient evidence to support the robbery convictions; (2) the trial court erred in forcing him to appear before the jury while dressed in prison garb; (3) the trial court improperly commented on the evidence; and (4) the court erred in admitting a letter and envelope into evidence. The court of appeals affirmed on points (1) and (3), but reversed on the other two issues, holding that the trial court erred in compelling Box to stand trial in prison garb and in admitting a letter and envelope into evidence. See Box v. State, 74 Ark.App. 82, 45 S.W.3d 415 (2001). The State petitions us for review, addressing the two points on which the court of appeals reversed. Contrary to Box's assertion, Ark. R.App. P.—Crim. 3(c) is inapplicable as this is not an appeal by the State. We granted review under Ark. Sup.Ct. R. 2-4(c) and address the two points on which the court of appeals reversed. We reverse the trial court on the prison-garb issue, and affirm the trial court on the admission of the letter and envelope into evidence.

We need not address the other issues. We agree with the court of appeals in holding that there was sufficient evidence to support Box's robbery conviction and that the trial court did not improperly comment on the evidence.


This case arises from a robbery of the Triple D. Liquor Store in downtown Dumas. The first issue in this case is whether Box waived his right to appear before the jury dressed in civilian clothing. At the time of his trial in the present case, Box was incarcerated on other convictions in the Arkansas Department of Correction. Box had been told by his attorney that he needed to make the necessary arrangements to have civilian clothing present at the courthouse to wear during trial. Box indicated he could arrange this. Box then

71 S.W.3d 555

got a commitment from his parents that they would have his civilian clothes at the courthouse for him to wear during his trial.

However, when Box arrived at the courthouse, his parents were not there, and he had no civilian clothes to wear. He was dressed in the white uniform of the Arkansas Department of Correction. Before Box was brought into the courtroom, the fact that Box was dressed in prison garb was brought to the trial court's attention by the sheriff's department. The State's attorney also raised the issue with the Court. The trial court then called in defense counsel and affirmed that Box had made arrangements for his parents to deliver his civilian clothing to the courthouse. The trial court concluded that Box had his chance, and by not making successful arrangements, he had waived his right to be tried in civilian clothing. The trial court ordered Box brought to the courtroom, and he appeared in front of the venire panel in his white Arkansas Department of Correction uniform. Shortly thereafter, Box's parents arrived with the clothing, and Box was allowed to change. The trial was then completed.

The second issue involves admission of a letter and envelope that robbery victim Tommy Cantrell received. Cantrell testified that he received the letter after the robbery, that it had a Dermott postmark, and that it appeared to say "Correctional" on the envelope. The letter was unsigned, and upon its mention, defense counsel objected on the basis of authentication. The trial court overruled the objection finding the marks on the envelope and the content of the letter identified Box as the author. The letter began, "This is Terrance Box i just wont you to know...."

Prison Garb

We first note that all the facts regarding the matters immediately preceding trial were not put on the record; however, there is a sufficient record to recognize that Box was trying to obtain a continuance or a delay so he could get civilian clothing. Box arrived at the courthouse for trial in his white Arkansas Department of Correction uniform, and the sheriff's department went to the trial judge to tell him this. The trial court was unwilling to entertain any request for time to get proper clothing. The trial court concluded that Box had waived his right to appear in street clothes because he failed to timely procure any and ordered him brought into the courtroom and into the presence of the venire panel. We hold Box did not waive his right to appear in street clothes. This is apparent when the events and discussion in the trial court that day are considered. We note that the prosecutor also brought this matter to the trial court's attention and that the trial court advised both attorneys that he would allow defense counsel to make his motions "later on." Thereafter, between the court's voir dire and counsel's voir dire, the following occurred:

DEFENSE COUNSEL: Okay. Secondly, Mr. Box is present in his jail garb, his coveralls. The coveralls are white, which is symbolic of an ADC prisoner. Mr. Box was transported earlier this week to Diagnostic Center in Pine Bluff to serve some time on his revocation. Since he has been brought back, he is being incarcerated in the ADC section of the detention center, which is a white coverall section.

Now, we're dealing with a Delta County jury pool, the jury pool is—it includes persons of law enforcement nature, by law enforcement affiliation, and in fact quite a few prison employees are in the jury pool. Anybody seeing Mr. Box here today in ADC

71 S.W.3d 556

garb should understand that he has a prior conviction. That, alone is prejudicial.

I met with Mr. Box last week at ADC—excuse me, at Delta Regional Center. I informed him that he would have to be here in private, civilian clothes, personal clothing. He told me he had some he could wear that he'd been arrested in, and that he would contact his parents to bring him some clothing for the trial today; however, it has not been supplied, and he's still in court in white prison garb, Your Honor, and it's just an inference that he has been convicted before, that he is in white prison garb, rather than county garb.


THE COURT: Now, here's the situation the court's put in. Before Mr. Box was brought up the stairs, I asked Mr. Potts [defense counsel] if he had discussed this matter with Mr. Box about wearing civilian clothes, if those were available. He said he had. Mr. Box showed up from the regional jail without any. None had been supplied over to the sheriff's office. Is that correct, Sheriff?

SHERIFF: That's correct.

THE COURT: For him to change into. He had been given that opportunity. It's the defendant's obligation, in my opinion, to have those available, unless it's impossible. It's not been shown to have been impossible. I could have delayed this matter, but I don't think I'm required to delay this matter to search down and hunt for Mr. Box some clothes that he wants to wear. I don't think that's the court's obligation, and the motion is denied in that regard. That was his choice as far as I'm concerned. He's waived any complaint about it. (Emphasis added.)

DEFENSE COUNSEL: Your honor, I would make one additional point on that, is that he was not arrested in the garb he's wearing today, that somewhere there's civilian clothes available that he has been locked up and arrested in, and I would have presumed that ...

THE COURT: It's not been shown that those are unavailable, and additionally, you said that his parents were going to have some here. They haven't done that. I don't know where they are, but again, I'm not going to delay this thing for you to find out, or for me to find out. It's his responsibility. I've got an obligation to move this case along, and that's what I'm trying to do.

The court then proceeded to try Box. What is readily apparent from the above discussion is that Box's attorney tried to delay the trial until Box could be dressed in civilian clothing, but the court expressly denied his motion.

There cannot be any doubt that appellant had a right to appear in civilian clothing. Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). In Miller, we adopted the rule then held by the majority of States that "absent a waiver accused should not be forced to trial in prison garb." Miller, 249 Ark. at 5, 457 S.W.2d 848. This was and remains consistent with Article 2, Section 8, of the Arkansas Constitution. Six years later, the United States Supreme Court noted this court's opinion in Miller with approval and adopted a somewhat similar rule in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). The holding of the U.S. Supreme Court in Estelle was that under the Fourteenth Amendment, a defendant's constitutional rights were violated when he was compelled to wear identifiable

71 S.W.3d 557

prison clothing. The U.S. Supreme Court's decision in Estelle was first noted by this court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev'd on other grounds, Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). We have never altered our original holding in Miller. The court of appeals in Washington v. State, 6 Ark.App. 23, 637 S.W.2d 614 (1982) stated, "the rule in Estelle, supra, was adopted by the Arkansas Supreme Court in Holloway, Welch and Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976)." The court of appeals is in error. In Holloway, this court noted Estelle, but did not overrule Miller. This court held in Miller, supra, in 1970 that absent a waiver, a criminal defendant may not be tried in prison garb. The rule in Arkansas remains that the...

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