Robbins v. State, 71089

• Decision Date: 08 January 1986
• Docket Number: No. 71089,71089
• Citation: 340 S.E.2d 206,177 Ga.App. 547
• Parties: ROBBINS v. The STATE.
• Court: Georgia Court of Appeals

Page 206

340 S.E.2d 206

177 Ga.App. 547

ROBBINS v. The STATE.

No. 71089.

Court of Appeals of Georgia.

Decided Jan. 8, 1986.

Rehearing Denied Jan. 23, 1986.

J. Curtis Hanks, Lawrenceville, for appellant.

Thomas C. Lawler III, Dist. Atty., for appellee.

BENHAM, Judge.

Appellant was convicted by a jury of conspiracy to commit murder. He now appeals the judgment of conviction, claiming that his constitutional due process right to a fair trial was violated by the trial court's allowing appellant's co-conspirator to testify at trial while wearing her prison clothing. We disagree and affirm.

It is well established that to compel a criminal defendant to wear distinctive prison garb at his trial is to deny him the presumption of innocence, a violation of his constitutional due process rights. Pike v. State, 169 Ga.App. 358, 312 S.E.2d 808 (1983), rev'd. on other grounds, 253 Ga. 304, 320 S.E.2d 355 (1984). Whether the protection of that right extends to witnesses appears to be a question of first impression in this state. Other jurisdictions have declined to so extend it (see, e.g., State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979)), and under the circumstances in the case before us, we too decline to do so.

Appellant was tried while wearing civilian clothing, but when his co-conspirator, called to testify by the State, was brought in the courtroom, appellant objected to her wearing what appellant's counsel described as a "two-piece khaki-green jumpsuit that's clearly an institutional uniform of some sort." It does not appear from the record that the clothing had any markings or other indicia that distinguished it as prison issue clothing. "This being so, 'we conclude that [the witness'] clothing ... was sufficiently "civilian" to preclude the possibility of prejudice to appellant.' [Cit.]" Whittington v. State, 155 Ga.App. 667(1), 272 S.E.2d 532 (1980). Moreover, at trial the prosecuting attorney asked the witness where she was living, and she responded, "Right now I'm in jail." Appellant's counsel made no objection. Any possible prejudice appellant might have suffered as a result of the witness' clothing was eliminated by her admission of incarceration. See State v. Yates, 174 Conn. 16, 381 A.2d 536 (1977).

Judgment affirmed.

BANKE, C.J., and McMURRAY, P.J., concur specially.

BANKE, Chief Judge, concurring specially.

I concur fully in the majority's ruling that the appearance of a witness in prison garb is not error which...