United States v. Williams

• Decision Date: 21 June 1974
• Docket Number: No. 74-1029.,74-1029.
• Citation: 498 F.2d 547
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael J. WILLIAMS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

498 F.2d 547 (1974)

UNITED STATES of America, Plaintiff-Appellee, v. Michael J. WILLIAMS, Defendant-Appellant.

No. 74-1029.

United States Court of Appeals, Tenth Circuit.

June 21, 1974.

C. Nelson Day, U. S. Atty., and James M. Dunn, Asst. U. S. Atty., Salt Lake City, Utah, for appellee.

William D. Marsh, Ogden, Utah, for appellant.

Before HILL, BARRETT and DOYLE, Circuit Judges.

BARRETT, Circuit Judge.

Michael J. Williams appeals from a jury conviction and sentence resulting from trial held in Ogden, Utah, on November 7th and 8th, 1973. Williams had been charged with the violation of 18 U.S.C.A. § 2314, to-wit: Interstate transportation of a forged and falsely made security.

Williams was charged as follows: That on or about February 21, 1973, at Ogden, Utah, he did, with unlawful and fraudulent intent, transport from Ogden to Los Angeles, California, a forged and falsely made security, to-wit, a Travelers Express Money Order No. 2058839145, payable to him in amount of $190.00, signed Betty A. Williams, dated February 21, 1973, and endorsed by appellant Williams knowing the same to have been forged and falsely made.

Appellant urges the following grounds for reversal of his jury conviction and sentence: (1) that he was deprived of a fair trial when the trial court ordered that trial proceed, notwithstanding that appellant appeared before the jury in soiled jail attire, which deprived him of his fundamental right to a presumption of innocence; and (2) that the trial court erred by failing to adequately define the elements of the crime charged.

I.

Following his arrest, Williams was incarcerated in a Salt Lake City jail. He was driven from Salt Lake City to Ogden on the morning of trial by Deputy Marshal Alcorn. After the jury was impaneled, counsel for appellant approached the bench where he lodged an objection about the fact that Williams was "brought" into the courtroom in prison attire. The Court, out of concern, made detailed inquiries concerning the situation. Appellant's attorney, after conferring with Williams reported to the Court that Williams did have a "civilian" pair of pants and shirt in the Salt Lake jail; that he was asked whether he wanted to change into them before driving to Ogden for the trial; that Williams did not think they were "any better than the ones" he had on in court; that he did not have "anything else to wear." Deputy Marshal Alcorn stated that Williams was asked in Salt Lake before leaving for trial in Ogden if he wanted to change to his street clothes rather than his jail clothes; that Williams had responded that it would be to his advantage to be in jail clothes; and that Williams did not say anything to the Deputy Marshal about the condition of his street clothes.

With respect to Williams' attire in court, the Trial Judge observed that the white T-shirt he was wearing appeared to be dirty. The Court then observed that while Williams had already made the decision to wear jail attire rather than street clothes, that even so during the noon recess the Deputy Marshal was to obtain clean jail attire for Williams. When trial was resumed after lunch, Williams was dressed in new, clean slacks and a shirt which had been purchased for him by the Deputy Marshal. Counsel for Williams moved for mistrial on the grounds that appellant had been prejudiced in the eyes of the jury by reason of being displayed to them earlier wearing the soiled jail clothing. In denying the motion, the Court stated and concluded:

The Court is of the opinion the question of attire has been properly handled. The Court had the marshal speak on the record before counsel, apart from the jury, about what he did; and it seems to me the marshal was solicitous of this problem and did present the defendant with an opportunity that he made a decision which the marshal relied on, and as, Mr. Marsh, you have acknowledged, that might have been assisted in by you had you had opportunity or thought of it earlier.

I think we have acted reasonably since that time in an effort to alleviate any prejudice.

It\'s the Court\'s judgment, however, that there has not been any substantial prejudice by reason of appearance for this much of the trial in the T-shirt and levi\'s. While they did in the Court\'s mind justify the action taken in attempting to improve his appearance, they were not so bedraggled in appearance nor dirty or unseemly as to accomplish any necessary prejudice, as it seems to the Court.

So the Court will conclude, as well, that the opening statement was not error. And the motions are denied.

(Tr., Vol. I, p. 13).

In support of his contention that his appearance in court before the jury in soiled jail clothing infringed upon his fundamental right to a presumption of innocence as secured by the Fourteenth Amendment, appellant relies principally upon Hernandez v. Beto, 443 F.2d 634 (5th Cir. 1971), cert. denied 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971) and Brooks v. State of Texas, 381 F.2d 619 (5th Cir. 1967). The holding in Hernandez v. Beto, supra, is that trial of a criminally accused while attired in prison clothing does infringe the fundamental right to the presumption of innocence. We expressly rejected this per se rule in Watt v. Page, 452 F.2d 1174 (10th Cir. 1972), cert. denied 405 U.S. 1070, 92 S.Ct. 1520, 31 L.Ed.2d 803 (1972):

As to Hernandez v. Beto, we must say that we do not agree with the Fifth Circuit to the extent that an appearance in "jail clothing," if established, leads to any automatic result if its opinion so infers.

452 F.2d at 1175.

In Anderson v. Watt, 475 F.2d 881 (10th Cir. 1973), we re-affirmed the rule we adopted in Watt v. Page, supra, i. e., that the nature of the clothing worn by a defendant at his trial is not inherently prejudicial to his right to a fair and impartial trial. In Anderson, we affirmed the trial court's finding that the accused was, beyond a reasonable doubt, in accordance with the standard prescribed under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), denied a fair trial by reason of his appearance in jail coveralls with the words "Oklahoma County Jail 44" stenciled in large letters across the back specifically because the District Court found that there was no deliberate desire on the part of the petitioner to be tried in his jail clothes for the purpose of sympathy or any other purpose in his behalf. (Emphasis ours). We also found that Anderson was prejudiced during trial when the prosecution referred to him as "the man in coveralls" and when the prosecutor, in closing arguments, made reference to Anderson and "his kind."

We hold that the Trial Court did not err in denying the appellant's motion for mistrial following his initial appearance in soiled jail clothing. In direct contrast to the circumstances in Anderson v. Watt, supra, here it is uncontroverted that Williams chose to wear the jail clothing in lieu of his street clothes. Even though his street clothing, consisting of a suit coat and pants, were not the "best" appearing attire, the trial judge found that they were suitable for court appearance. Accordingly, the Court concluded that ". . . his choice to appear in jail attire was a choice not of the best between the two, but a choice for other reasons." (Tr. Vol. I, p. 158). We agree. Appellant's choice was knowing, voluntary, deliberate and uncoerced. This choice fits squarely within these observations made in Johnson v. United States, 318 U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 (1943):

We cannot permit an accused to elect to pursue one course at the trial and then, when that has proved to be unprofitable, to insist on appeal that the course which he rejected at the trial be re-opened to him. However unwise the first choice may have been, the range of waiver is wide. Since the protection which could have been obtained was plainly waived, the accused cannot now be heard to charge the court with depriving him of a fair trial.

...