People v. Shaw, 9

• Citation: 381 Mich. 467,164 N.W.2d 7
• Decision Date: 03 February 1969
• Docket Number: No. 9,9
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Herschel M. SHAW, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 7

164 N.W.2d 7

381 Mich. 467

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Herschel M. SHAW, Defendant and Appellant.

No. 9.

Supreme Court of Michigan.

Feb. 3, 1969.

Donald A. Kuebler, Asst. Pros. Atty., Robert F. Leonard, Pros. Atty., Genesee County, Flint, for plaintiff-appellee.

Brownell, Gault & Andrews, by Douglas M. Philpott, Flint, for defendant-appellant.

Before the Entire Bench.

ADAMS, Justice.

LeRoy Smith, Clayton Wright and defendant Herschel M. Shaw were jointly charged with breaking and entering in the nighttime. The offense was alleged to have occurred May 15, 1963. On June 12, 1963, defendant was afforded court-appointed counsel. On October 14, 1963, codefendant Wright entered a plea of guilty to the charge.

On October 15, 1963, at 4:30 o'clock p.m. the case against defendant and LeRoy Smith was begun. Defendant's court-appointed attorney appeared on his behalf. A jury was drawn and sworn. Court then recessed until the following day.

On October 16, 1963, upon the reconvening of court, Ollie B. Bivins, attorney for the defendant, addressed the court. The following took place:

'MR. BIVINS: This is a motion, sir, that is something that has occurred since we have impaneled the Jury that I would like to make a Court record--bring it to the Court's attention as a matter of record, something that I feel may have prejudiced my client's rights to a fair trial.

'THE COURT: All right, take the Jury out.

(Thereupon the Jury retired from the Court Room).

'THE COURT: All right, Mr. Bivins, make your motion.

'MR. BIVINS: Your Honor, at this time I would like to make a motion for a mistrial for the following reason; that I believe that the minds of the Jury is unduly prejudice 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 being, 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 COURT: Well, let me ask you this. You are his lawyer; why didn't you bring him here in ordinary clothes? You could have had him--

'MR. BIVINS (interposing): He has clothes, your Honor, but I cannot go over to the County Jail and make those people let him put the clothes on. He requested the right to put his clothes on.

'THE COURT: I don't know that.

'MR. BIVINS: I realize the Court does not know that, but, nevertheless, here they sit in full view. And I am saying that this would prejudice their rights to a fair trial. These are only human beings sitting there. A man comes into Court looking like a criminal--

'THE COURT (interposing): What do you say, Mr. Prosecutor?

'MR. JAKEWAY: Well, your Honor, when we started the case yesterday they were dressed like this and no objection was made at that time, and when the men were brought in here today the Jury wasn't in here yet, and no motion was made at that time, and I would think it would be okay with me if the Court would ask the Jury the question, whether they would be prejudiced by the way the defendants are dressed in Court. But I don't think they would be prejudiced--in fact, I feel they wouldn't be prejudiced by what the men are wearing.

'MR. BIVINS: 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 COURT: I am going to deny your motion, Mr. Bivins. You have been counsel for this man for quite some time and you have known since the 26th day of August when it was going to be tried, and I think you could have arranged to have them appear in whatever clothing you thought proper.'

The people's case was presented. No witnesses were produced for the defendants. The jury was charged, retired at 2:20 o'clock p.m. and returned at 2:45 o'clock p.m. with a verdict of guilty.

Upon appeal, the Court of Appeals held that the objection to the way defendant Shaw was clothed was not timely made and that the error complained 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. 383):

'That a court his discretion as to the criminal defendant's attire is manifest from both the Eaddy Case (Eaddy v. People (1946), 115 Colo. 488, 174 P.2d 717) and our case of People v. (William L.) Thomas, supra, (1 Mich.App. 118, 134 N.W.2d 352).'

In Eaddy v. People (1946), 115 Colo. 488, 174 P.2d 717, it is stated (p. 491, 174 P.2d p. 718):

'We believe the mind of a prisoner would be as much disturbed and his mental faculties as much confused and embarrassed by carrying on his person such brand of incarceration, as here required, as by physical shackles, and that a prejudice against a prisoner might equally well be created thereby in the minds of the jurors. It is difficult to find any distinction as to the humiliation involved, between requiring a prisoner to wear the words 'County Jail' branded upon his clothing and requiring him to wear them on a placard attached about his neck; either is a mockery, an indignity and a humiliation not consonant with innocence and freedom. 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.'

The opinion states (p. 490, 174 P.2d p. 718):

'At the trial he was brought into court wearing striped coveralls with the words 'County Jail' written in large letters across the back. Objection to this garb in behalf of defendant and request that the court direct the proper officer to return him to the court room properly attired were overruled.'

The defendant was granted a new trial.

In the case of Shultz v. State (1938), 131 Fla. 757, 179 So. 764, the opinion is expressed that to be clothed as a convict when one has not been convicted is highly improper and that it might well be grounds for a reversal. In that case, reversal was based upon other grounds.

In the case of Brooks v. Texas (1967) (C.A. 5), 381 F.2d 619, the defendant was brought to trial handcuffed and in his jail uniform. The Court said (p. 624):

'It is inherently unfair to try a defendant for 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.'

In Brooks, the Court held that the defendant was denied the effective assistance of counsel primarily because of counsel's failure to prepare properly for trial and to afford the defendant the defense of insanity which was the only available defense. The judgment of the District Court was reversed with directions to grant the writ of habeas corpus unless the state of Texas elected within a reasonable time to again try defendant.

As supporting the proposition that a court may exercise discretion as to the criminal defendant's attire, the Court of Appeals cited People v. Thomas (1965), 1 Mich.App. 118, 134 N.W.2d 352. In that case the defendant was brought into court in prison uniform and in chains. This was done as a precautionary measure to prevent another escape by the defendant who had once escaped from prison. In People v. Henley (1965), 2 Mich.App. 54, 57, 58, 138 N.W.2d 505, also noted by the Court of Appeals, the trial judge was obliged to have the defendant forcefully clothed and brought into the court room shackled to a chair because he could not be controlled in any other way. We do not think the action taken in those cases by the trial court has any application to the facts of this case.

Under ordinary circumstances, a court has no discretion as to a criminal defendant's attire. The rule of law is stated in 21 Am.Jur.2d, Criminal Law, p. 275, § 239, as follows:

'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.'

In the present case the issue as to how the defendant was garbed was never raised by his attorney until after the jury was chosen and the jury had twice had an opportunity to see defendant in prison garb. While defendant's attorney moved for a mistrial, he made no attempt to...