State v. Rood
| Decision Date | 08 October 1992 |
| Docket Number | No. 21024,21024 |
| Citation | 422 S.E.2d 516,188 W.Va. 39 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia, Plaintiff Below, Appellee, v. Mark ROOD, Defendant Below, Appellant. |
Syllabus by the Court
"A criminal defendant has the right under the Due Process Clause of our State and Federal Constitutions not to be forced to trial in identifiable prison attire." Syllabus Point 2, in part, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979), cert. denied, 464 U.S. 831, 104 S.Ct. 110, 78 L.Ed.2d 112 (1983).
Stephen D. Herndon, Wheeling, W.Va., for appellant.
Mario J. Palumbo, Atty. Gen., Teresa A. Tarr, Sr. Asst. Atty. Gen., Charleston, for appellee.
Mark Rood appeals a jury verdict in the Circuit Court of Ohio County that found him guilty of breaking and entering. On appeal Mr. Rood maintains that his conviction should be set aside because during the trial he wore prison attire. Although the State may not compel a criminal defendant to wear prison attire at trial, in this case the record demonstrates that Mr. Rood's right to a fair trial was not compromised, and, therefore, we affirm the conviction because the error was harmless.
On November 18, 1989, at about 10:00 p.m., two police officers saw a car with an open trunk backed up to a broken window at the rear of the Wheeling Springs Service Company. Mr. Rood and another man were standing at the rear of the car, but as the officers approached the car, Mr. Rood got into the right rear seat and the other man got into the passenger seat and slid over to the driver's seat. The trunk of the car was left open. Mr. Rood told the officers that he and his friend were changing the left front tire. 1 A floor jack was partially under the right rear of the car. 2 However, the base of the floor jack was missing.
A third man was found inside the Wheeling Springs building crouching behind a vehicle. The floor jack belonged to Wheeling Springs and had been inside the building when the business closed for the day. The floor jack's base was still in its usual place in the east side of the building. The broken window outside of which the floor jack was found is on the west side of the building.
At trial the State presented testimony from the two police officers, the president of Wheeling Springs, an employee of Wheeling Springs and the owner of the tow company. The defense cross-examined each of the State's witnesses and, then, elected to rest at the conclusion of the State's case.
At the time of his trial for breaking and entering, Mr. Rood was held in the Brooke County Jail on unrelated charges. On the day before trial, Mr. Rood's lawyer telephoned him to make sure he had civilian clothing. However, because of an apparent mix-up 3 Mr. Rood appeared for trial in prison attire, a green shirt and a green pair of pants. 4 After some delay while Mr. Rood's lawyer unsuccessfully tried to get him civilian clothes, the trial proceeded with Mr. Rood wearing prison attire.
The trial court was concerned about Mr. Rood's prison attire. In addition to delaying trial, at the beginning of the trial the trial court proffered a cautionary instruction to the jury that Mr. Rood's attire should not influence in any manner the decision and, after the cautionary instruction the jurors indicated that they could reach a fair decision regardless of Mr. Rood's clothing.
Mr. Rood maintains that after the cautionary instruction his lawyer objected to the continuation of the trial because of Mr. Rood's attire. Although the court reporter lost the minutes, stenographic tapes and audiotapes of some portions of the trial, the majority of the lost portions were reconstructed by the parties. However, the parties were unable to reconstruct the exact wording of the cautionary instruction and Mr. Rood's objection.
This court has firmly established that "[a] criminal defendant has the right under the Due Process Clause of our State and Federal Constitutions not to be forced to trial in identifiable prison attire." Syllabus Point 2, in part, State ex rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979). 5 The defendant in McMannis was tried for an offense that was committed while he was incarcerated and the defense "did not object to this attire until after he had examined the first defense witness and had called his second witness...." McMannis, id. at 131-32, 254 S.E.2d at 807. Because no initial objection was made and the offense was prison connected, we refused to reverse Mr. McMannis' conviction because the error was "not prejudicial under the doctrine of harmless constitutional error." McMannis, id. at 135, 254 S.E.2d at 808.
Our holding in McMannis was based on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), which held that the State may not compel a criminal defendant to wear prison attire at his trial, because of the impact of the defendant's appearance in prison attire on the presumption of innocence, which "is a basic component of a fair trial under our system of criminal justice." 425 U.S. at 503, 96 S.Ct. at 1692. However "[a]fter setting the issue on the constitutional pedestal, the Court indicated that it was not a fundamental right such that a knowing and intelligent waiver of the right must be shown...." McMannis, supra 163 W.Va. at 133, 254 S.E.2d at 807. Because in Estelle "no objection was made to the trial judge concerning the jail attire" (425 U.S. at 509-10, 96 S.Ct. at 1695), the Supreme Court held that the failure to object "is sufficient to negate the presence of compulsion necessary to establish a constitutional violation." 425 U.S. at 513, 96 S.Ct. at 1697. 6
Based on Estelle several courts, similar to our holding in McMannis, have refused to adopt a per se rule that appearing in prison attire is prejudicial but have reviewed each case to determine if the prison attire was prejudicial. See Boswell v. State of Alabama, 537 F.2d 100, 104 (5th Cir.1976) (); Haggard v. State of Alabama, 550 F.2d 1019 (5th Cir.1977) (); Mitchell v. Engle, 634 F.2d 353 (6th Cir.1980) (); Jeffers v. Ricketts, 627 F.Supp. 1334 (D.Ariz.1986), aff'd in part and rev'd in part on other grounds, 832 F.2d 476 (9th Cir.1987), rev'd on other grounds, 497 U.S. 764, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990) (defendant's appearance in jail attire for one day did not impermissibly interfere with his presumption of innocence); Fernandez v. United States, 375 A.2d 484 (D.C.1977) (). Compare United States v. Harris, 703 F.2d 508 (11th Cir.1983) ().
In the present case, there is no evidence that the State compelled Mr. Rood to stand trial in prison attire. Although on appeal Mr. Rood alleges that the Brooke County correctional officers refused to allow him to dress in his civilian clothes, the allegation was not made at trial. After Mr. Rood appeared for his trial in prison attire, the trial judge delayed...
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