State v. Tennant, 51896

• Decision Date: 29 June 1972
• Docket Number: No. 51896,51896
• Parties: STATE of Louisiana v. Leroy TENNANT et al.
• Court: Louisiana Supreme Court

Page 230

265 So.2d 230

262 La. 941

STATE of Louisiana v. Leroy TENNANT et al.

No. 51896.

Supreme Court of Louisiana.

June 29, 1972.

Dissenting Opinion June 30, 1972.

Rehearing Denied July 31, 1972.

W. Lee Overton, Clinton, Robert H. Carpenter, Jr., Stanley E. Branton, St. Francisville, for defendants-appellants.

William J. Guste, Jr., Atty. Gen., Harry H. Howard, Asst. Atty. Gen., Richard H. Kilbourne, Dist. Atty., Fred C. Jackson, Asst. Dist. Atty., for plaintiff-appellee.

SUMMERS, Justice.

A bill of information filed March 17, 1971 against William, Leroy and Granville Tennant, Tommy Ray Johnson and Larry McKee charged that on November 11, 1970 they committed simple burglary of the building known as B & B Electramatic Company. La.R.S. 14:62. Upon motion of the district attorney a severance was granted as to Larry McKee. The other four accused were jointly tried, found guilty and sentenced to nine years in the state penitentiary.

On this appeal two principal propositions, supported by bills of exceptions, are presented for review. One concerns the charge that defendants were handcuffed and in prison garb; the other involves the denial of a continuance. Both are without merit.

At the trial defendants were represented by three separate counsel, two retained and one appointed. Trial began on June 11, 1971. After seven jurors were chosen, the regular petit jury venire was exhausted and another panel was ordered. At this time defense counsel moved for a mistrial based on his statement that defendants were handcuffed and in prison garb. The motion was overruled and bills of exceptions were reserved.

The transcript discloses a statement by defense counsel on June 11, 1971 at 1:30 in the afternoon. He set forth in this oral statement that the proceedings began at 9 o'clock that morning and defendants, except for a brief recess for lunch, had been in court during that time, having been Brought into the courtroom handcuffed and in prison garb. This, he stated, occurred while the prospective jurors were in the courtroom; that defendants were led out in prison garb and brought back at approximately 1:25 that afternoon handcuffed and still in prison garb. Thereafter the statement continues,

. . . and except for three defendants who had removed their shirts . . . their striped shirts and one still had on full uniform and remained handcuffed until approximately 2:00 at which time paraded in front of the jury and venire back of the room and unhandcuffed . . . highly prejudicial and grounds for a mistrial. It was completely in the control of the State of Louisiana to dress these people in the proper clothes. I would also like to state that they are not criminals or convicts the fact that they were housed in the jail in Baton Rouge, could not get bond is no reason to be handcuffed or in prison garb which prejudices the jury and venire and is grounds for a mistrial and I move for mistrial . . ..

After pointing out that the handcuffs had been removed the district attorney stated: 'We have to think about the safety in the Courtroom. The Sheriff doesn't know and I don't know. We are not taking any chances.' Whereupon the motion was overruled; the trial judge declaring that the basic reason for the ruling was the disruptions which had occurred in the courtrooms throughout the Nation in recent years, and that he felt that, in the exercise of the discretion he had as a trial judge, he could take any action he considered necessary to insure the safety of court personnel. He further stated that he found no prejudice could result to the defendants in matters of this nature. As to the garb, he noted nothing about the dress of defendants which differed from the dress of others. The district attorney remarked: 'Your Honor, I didn't notice anything unusual.' With respect to the handcuffs, it was the judge's considered opinion that this in nowise prejudices the defendants in the minds of the jurors.

Defense counsel then reserved bills of exceptions to the ruling, pointing out that defendants 'are dressed in the garb worn by the East Baton Rouge Parish jail inmates which is blue and white stripes and it is very evident it is prison garb.' It appears that these defendants, or at least three of them, had been imprisoned in the adjoining parish of East Baton Rouge and had been transported to Clinton for trial.

Thereafter selection of the jury continued, and from the newly subpoenaed venire three more jurors were selected, again exhausting the venire. More men were ordered subpoenaed for petit jury service, and court was adjourned for the weekend until June 14, 1971.

On June 14 the remaining two jurors were selected and just prior to the district attorney's opening statement defense counsel asked that the jury be retired and again moved for a mistrial 'based on our previous grounds.' He again dictated this statement into the record.

This morning during the selection of the last two jurors the four accused were again paraded before the prospective jurors dressed in what is obviously prison garb, blue denim, grey and white striped. This, of course, is the same objection we previously made, when the other two panels in which the first ten jurors were selected.

Counsel also stated that defendants were not then handcuffed.

To this motion, the trial judge made the same ruling, stating:

. . . I do not consider the manner in which they are dressed as garb as you speak of it to be indicative of prison garb at all. We see parading up and down the streets these days and in the courtroom and everywhere, people dressed in all kinds of fashions. Frankly, I didn't notice any difference in the way these people were dressed than many people I see on the streets and I am not going into that really.

Further, the trial judge stated:

I may add again, I have seen these jump suits some of these people are wearing and they look exactly like what these men have on. What difference does it make? . . ..

The judge again expounded at length upon his belief in the need to protect his court from the possibility of disruption and violence.

Bills of exceptions were reserved to this ruling.

Another and separate bill of exceptions was reserved when a motion for a mistrial was overruled. The motion, made when Larry McKee took the stand as a witness for the State, was based upon the statement of defense counsel that McKee, charged as a participant, was dressed in civilian clothes. The contention was that the State sought to cloak its witness in the garb of innocence, while the defendants were cloaked in the garb of the guilty--the convicted.

Considering first the question of the clothes worn by the defendants, the trial judge in his per curiam states that 'Defendants were brought into court at approximately 9 A.M. They were at this time dressed in blue and white pin-stripe clothing which had been provided by East Baton Rouge prison officials.' And then he states, 'the garb complained of is no different from that which some carpenters and similar craftsmen wear in their work. As the court stated at the hearing on the motion, the clothing which defendants wore was not indicative of prison garb.' Moreover, the judge points out that three of the defendants wore white T-shirts and the pin-stripe trousers, and the fourth wore the pin-stripe shirt and trousers.

Generally the right of an accused to the presumption of innocence guaranteed in all criminal trials in America entitles him to the garb of innocence. Thus an accused may insist that he be brought into court with the appearance, dignity and self-respect of a free and innocent man. He may, therefore, require that he be tried in civilian clothing, free of the stigma attached to prison garb. Shultz v. State, 131 Fla. 757, 179 So. 764 (1938); 23 C.J.S. Criminal Law § 977.

It is incumbent upon the party asserting a deprivation of this right to establish by clear and convincing evidence facts which support the claim. This standard of proof is required to overcome the broad discretion the law invests in the trial judge to supervise and administer the trial and its incidents within constitutional and legislative guidelines.

The facts before us in support of defendants' claim consist entirely of statements by defense counsel. The statements are vague and indefinite on the critical issue of whether the clothes in which defendants were dressed were in fact so distinctive as prison garb that the clothes would be noticed as such and considered as such by the jurors chosen to try defendants. That the clothes were 'prison garb' in appearance is a conclusion of defense counsel, contradicted categorically by the trial judge who described the clothing in some detail.

Current dress fashions indicate that many young people show a preference for dungarees, jeans and similar attire. The work clothing worn by these young defendants, ranging between 18 and 26 years of age, described by the trial judge, would not necessarily be considered unusual, or peculiarly prison garb by today's standard. There were no large stripes, numbers, names or other such markings usually associated with prison garb. The fact that this clothing was issued to prisoners in the East Baton Rouge Parish prison does not make it readily recognizable as prison garb by persons not familiar with that prison. We venture to say that all prisons do not issue clothing, and it is not shown that the clothes described are generally considered prison garb. For these reasons, we find that these defendants have failed to bear the burden of proof incumbent on them to establish that the clothing they wore was regarded by the jurors as 'prison garb.'

The contention that defendants were in handcuffs is also based upon the statements we have quoted made by defense counsel, the district attorney and judge. The per curiam of the trial judge, however, is again in conflict with defense counsel's statement. The per curiam recites: 'Further, in the immediate case the...