Tarpley v. Dugger, 86-5678

• Decision Date: 28 March 1988
• Docket Number: No. 86-5678,86-5678
• Citation: 841 F.2d 359
• Parties: Donnie TARPLEY, a/k/a Donald Topley, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 359

841 F.2d 359

Donnie TARPLEY, a/k/a Donald Topley, Petitioner-Appellant, v. Richard L. DUGGER, Respondent-Appellee.

No. 86-5678.

United States Court of Appeals Eleventh Circuit.

March 28, 1988.

Calianne P. Lantz (court-appointed), Miami, Fla., for petitioner-appellant.

Robert S. Jaegers, Asst. Atty. Gen., Dept. of Legal Affairs, W. Palm Beach, Fla., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before RONEY, Chief Judge, KRAVITCH, Circuit Judge, and HENDERSON, Senior Circuit Judge.

HENDERSON, Senior Circuit Judge:

Donnie Tarpley, also known as Donald Topley, appeals from a final order entered by the United States District Court for the Southern District of Florida denying his petition for a writ of habeas corpus. We affirm.

On December 14, 1980, Gay's Jewelry and Gifts in Stuart, Florida was burglarized. Police officers saw Tarpley's car in the vicinity of the burglary and a high speed chase ensued to the Martin County line. There, Tarpley's car was stopped. A witness told the officers that she saw two males exit the car and run into the woods. Tarpley and a cohort were eventually apprehended. Several of the stolen items were found in the trunk of Tarpley's car, including a display case with his fingerprints on it.

Tarpley was charged in the Circuit Court of the Nineteenth District in and for Martin County, Florida with burglary of a structure (Count I), grand theft (Count II) and criminal mischief causing damage over $1,000 (Count III). A jury trial resulted in Tarpley's conviction on all three counts. The state trial court determined that Tarpley was a habitual offender and sentenced him to ten years' imprisonment on Count I, fifteen years' imprisonment on Count II and ten years' imprisonment on Count III.

Tarpley appealed his conviction to the District Court of Appeal of Florida, Fourth District, alleging as error (1) that he was compelled to appear before the jury in jail garb throughout his trial, thereby depriving him of his rights to a fair trial and to equal protection and (2) that the trial court erred in not granting a mistrial because of certain remarks made by the prosecutor during his closing argument. The appellate court found no merit to Tarpley's second ground of error but remanded the case to the trial court for an evidentiary hearing to determine whether Tarpley could have obtained suitable clothing for trial. Topley v. State, 416 So.2d 1158 (Fla. 4th DCA 1982).

Following an evidentiary hearing, the state trial court concluded that Tarpley had not been compelled by the State to wear prison garb because he could have obtained suitable clothing to wear at his trial. The Fourth District Court of Appeal affirmed this judgment. Topley v. State, 424 So.2d 81 (Fla. 4th DCA 1983).

On April 13, 1984, Tarpley filed a petition for post-conviction relief in the state trial court pursuant to Rule 3.850 of the Florida Rules of Criminal Procedure alleging that his sentence for the offense of criminal mischief violated the Double Jeopardy Clause. The trial court denied this petition and the appellate court per curiam affirmed the denial. Tarpley v. State, 475 So.2d 710 (Fla. 4th DCA 1985).

On February 19, 1986, Tarpley filed this petition for writ of habeas corpus in the United States District Court for the Southern District of Florida, raising the three grounds previously considered and rejected by the state courts. On July 11, 1986, the United States Magistrate filed a report and recommendation with the district court recommending denial of the petition. On July 25, 1986, the district court entered an order denying Tarpley's petition. This appeal followed.

Tarpley urges that his rights to a fair trial and equal protection, as guaranteed by the Fourteenth Amendment, were violated because he was compelled to appear before the jury in jail attire. Tarpley's own clothes were seized as evidence when he arrived at the Martin County jail. At that time, he was issued the regulation green-grey prison jumpsuit that he wore throughout his trial.

Tarpley's counsel, an assistant public defender, filed a pretrial motion requesting funds with which to purchase clothes for Tarpley to wear at the trial. The trial judge denied the motion but offered Tarpley time to seek civilian clothes from friends, family, a social agency or any other source. This motion was renewed on the day the trial commenced but once again was denied. The judge offered to give a curative instruction to the jury relative to the presumption of innocence and the necessity that no inference be made from his clothing. However, no curative instruction was requested or given.

It is beyond peradventure that a state cannot, consistent with the accused's right to a fair trial as secured by the Fourteenth Amendment, compel a defendant to stand trial before a jury in identifiable prison attire. Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). To do so may impinge upon the accused's presumption of innocence and, therefore, constitute a violation of his constitutional right to due process. See Estelle, 425 U.S. at 503, 96 S.Ct. at 1692 ("The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.").

This does not mean, however, that the Constitution is violated every time a criminal defendant appears before a jury in prison clothes. The facet of such an occurrence which is condemned by the Constitution is the element of compulsion by the state. As the Estelle Court explained, "[t]he reason for this judicial focus upon compulsion is simple; instances frequently arise where a defendant prefers to stand trial before his peers in prison garments.... [I]t is not an uncommon defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury." 425 U.S. at 507-08, 96 S.Ct. at 1695.

It is undisputed that the State seized Tarpley's clothing as evidence upon his arrival at the jail. Additionally, at the evidentiary hearing, Tarpley's common law wife testified that she attempted to bring her husband some civilian clothes "in December," approximately "a week after he came to jail," but was told that she could not deliver them. Nonetheless, there is no evidence in the record that she made a second attempt to bring clothes to him during the approximately four months that elapsed between the time Tarpley was arrested and the time his trial began. Furthermore, although the trial judge refused to remove Tarpley's case from the docket and denied the motion for funds with which to purchase clothes, it is undisputed that he offered Tarpley time to procure civilian clothing and suggested that he try contacting certain local agencies that might provide clothing for him. Evidence was produced at the evidentiary hearing that several local agencies would, in fact, have furnished him clothes upon request. However, there is no evidence that Tarpley made any attempt to secure clothes from any of these agencies. In short, a review of the record leads us to conclude that there is substantial competent evidence to support the trial judge's finding that the State of Florida did not compel Tarpley to proceed to trial in prison garb.

Tarpley next argues that certain comments made by the prosecutor deprived him of his right to a fair trial in contravention of the Fourteenth Amendment and that the trial court erred when it denied his motion for mistrial. Without condoning these statements, we find no constitutional error.

During his closing argument, the prosecutor told the jury:

You know, Mr. Maslanik has spoken now for in excess of 30 minutes. I think it's very important for you to remember this that in this 30 minutes of addressing his case to you of talking about why his client should be set free, not once did he refer to, did he touch, did he pick up or talk about anyone of the 30 some odd exhibits here which proves this man guilty.

You know, this is where the case is gonna be decided ladies and gentlemen. Keeps saying the state is gonna prove this and the state is gonna prove that. The state can't prove a thing. The evidence either proves or disproves the case. I wasn't there Mr. Maslanik wasn't there and you weren't there. All any of us can rely on is the evidence. And yet for 30 minutes he doesn't talk about the evidence. Isn't that interesting? What does that tell you about his theory of the case? What does that tell you about how low or how far he will go to make you think that we don't have enough evidence?

MR. MASLANIK: I object to the prosecutor's remark about how low I would go. It's highly inflammatory. It's a personal attack, and I'd make an objection to that and move for mistrial, your honor.

THE COURT: The objection is sustained. The motion for mistrial is denied. Ladies and gentlemen, you will disregard this comment in your deliberation. You may proceed, sir.

At that point, the prosecutor stated:

I apologize for that remark if it offended anyone, but again, Mr. Maslanik spent 30 minutes talking about the state as though we are trying to have a conspiracy here among our officers, among our witnesses, to perpetrate a fraud upon you. And there's no evidence of that. And any remark that he might make pertaining to that are simply not true. And if you wish to believe that, if you wish to believe that in fact there is some conspiracy between the victim Mrs. Whiteside, and the Detective Johnson, and Deputy Prim, etc., well, we can't stop you from that then. And you will have to let the person go because if a conspiracy is proven here, then of course it's illegal and it's wrong.

But that again tells you more about their theory of the case is than what the evidence will show. Let's examine the evidence a little bit more.

Mr. Maslanik says the key issue is identity but he doesn't talk about identity. He doesn't tell you that isn't it an...