FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH. Dean W. Sword, Jr., Judge.
Sonya Weaver Roots (Weaver Law Practice, PLLC, on brief), for appellant.
Robert H. Anderson, III, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Present: Judges Humphreys, Beales and Decker. Humphreys, J., dissenting.
[64 Va.App. 713] RANDOLPH
A. BEALES, JUDGE
Robert Allen Wilkins (appellant) was convicted by a jury of third-offense petit larceny, a Class 6 felony under Code § 18.2-104. Appellant argues that the trial court " erred by allowing the jury to proceed when [appellant] was wearing his jail uniform."
On appeal, we consider the circumstances in the record in the light most favorable to the Commonwealth, " as we must since it was the prevailing party" in the trial court. Riner v. Commonwealth, 268 Va. 296, 330, 601 S.E.2d 555, 574 (2004). The record here contains only a partial, excerpted transcript of appellant's October 30, 2013 jury trial in the circuit court. The transcript abruptly begins with defense counsel's statements that " the jail, or whoever it is, didn't accept [appellant's] pants" that had been presented to the jail administrators and that " I don't have anything that will fit him." The trial judge, seeking alternatives to appellant appearing before the jury in jail clothing, noted that " the public defender I think has a clothes closet, for lack of a better way to describe it, that they might could help you out." The transcript establishes that the trial judge permitted a recess of some duration, although it is unclear from the record whether defense counsel acted on the trial judge's suggestion concerning the Public Defender's " clothes closet."
After the recess concluded and some preliminary matters were discussed, defense counsel told the trial judge:
I would have an objection to Mr. Wilkins being brought before the jury. He's wearing Portsmouth City Jail uniform clothes. They are kind of like a green, sort of scrub outfit. He is wearing black sneakers that I think they have the inmates wear. He's got a visible bracelet on his left arm.
Mr. Wilkins' lady friend and I spoke a number of times. She indicated she brought him clothing. First she brought it too soon. The jail wouldn't accept it. Then she brought [64 Va.App. 714] him clothes this morning. They wouldn't accept them. It had something to do with the hems taped up or something like this.
The trial judge ultimately overruled defense counsel's objection. During the course of the jury trial, appellant departed the courtroom at his own request after engaging in disruptive behavior -- including a threat to kill his defense counsel. The trial court then found:
I think he failed to produce clothes, which falls into what I view as a pattern of trying to avoid going to trial in this matter. This case has been pending since April. It has been continued three times. There ha[ve] been three lawyers, because the defendant has been dissatisfied with counsel. And even as late as yesterday he tried to get a continuance for what the Court viewed as no good reason. Obviously, he didn't get a continuance, and I think the issue with the jail clothes is part of that pattern.
On appeal, the conduct of a trial is generally reviewed for abuse of discretion, taking into account " the rights of the accused to a fair and impartial trial." Miller v. Commonwealth, 7 Va.App. 367, 371, 373 S.E.2d 721, 723, 5 Va. Law Rep. 813 (1988). " [O]nly when reasonable jurists could not differ can we say an abuse of discretion has occurred.'" Grattan v. Commonwealth, 278 Va. 602, 620, 685 S.E.2d 634, 644 (2009) (quoting Thomas v. Commonwealth, 44 Va.App. 741, 753, 607 S.E.2d 738, 743, adopted upon reh'g en banc, 45 Va.App. 811, 613 S.E.2d 870 (2005)). Furthermore, " 'the burden is on the appellant to present to us a sufficient record from which we can determine whether the lower court has erred in the respect complained of. If the appellant fails to do this, the judgment will be affirmed.'" Smith v. Commonwealth, 16 Va.App. 630, 635, 432 S.E.2d 2, 6, 9 Va. Law Rep. 1560 (1993) (quoting Justis v. Young, 202 Va. 631, 632, 119 S.E.2d 255, 256-57 (1961)).
Appellant argues that the trial court committed reversible error under Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, [64 Va.App. 715] 48 L.Ed.2d 126 (1976), a case that involved very different circumstances than those here. In Estelle, the defendant requested to wear to trial his own clothes that were already being kept at the local jail where he was being held; however, the jail officials denied this request, apparently having offered no reason
for doing so. Id. at 502. The defendant in Estelle instead " appeared at trial in clothes that were distinctly marked as prison issue." Id. The United States Supreme Court rejected the defendant's claim for habeas relief, holding that he failed to object at trial, while also explaining that " an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption [of innocence]" that is " so basic to the adversary system." Id. at 504.
The Supreme Court of Virginia addressed the Estelle decision in Jackson v. Washington, 270 Va. 269, 619 S.E.2d 92 (2005), which like Estelle was a habeas corpus claim. Jackson alleged the ineffective assistance of counsel. In Jackson, the Supreme Court stated, " Beyond question, an accused, consistent with the constitutional right to a fair trial, may not be compelled to stand trial before a jury wearing clearly identifiable jail or prison clothes." Id. at 276, 619 S.E.2d at 95. The Supreme Court explained in Jackson that " being compelled to appear before a jury in clearly identifiable jail or prison clothes may undermine the fairness of the fact-finding process and, thus, violate the accused's fundamental right to a presumption of innocence while furthering no essential state interest." Id. The Supreme Court added that it had not previously considered a case assessing " the impact upon a criminal trial of an accused being compelled to stand trial before a jury in jail or prison clothes," which " suggest[ed] the sensitivity and respect by the bench and bar of this Commonwealth for an accused's right to a fair trial" and caused the Supreme Court to infer that " the incidence of such occurrence is rightfully rare." Id. at 279, 619 S.E.2d at 97. However, the Supreme Court also stated that there is no " per se rule" in cases applying Estelle. Id. at 276, 619 S.E.2d at 95. As the Supreme Court explained in Jackson, " Whether an accused's [64 Va.App. 716] due process rights have been violated turns on the determination whether his being made to appear before the jury in jail or prison clothes is the result of actual state compulsion, a determination the reviewing court makes on a case-by-case basis." Id.
Therefore, on appeal, this Court must address -- based on the particular circumstances in this case -- whether appellant was compelled to appear before the jury in clearly identifiable jail clothing. Furthermore, as stated supra, it is appellant's burden to present this Court with a record complete enough to demonstrate that the trial court abused its discretion in this manner. See Wansley v. Commonwealth, 205 Va. 419, 422, 137 S.E.2d 870, 872-73 (1964) (stating that the appellant " must present a sufficient record on which the court can determine whether or not the lower court has erred" ). " The record must contain all evidence ...