THE COURT OF APPEALS OF VIRGINIA.
ROBERT ALLEN WILKINS, Appellant: WEAVER, SONYA ALFREDA,
COMMONWEALTH OF VIRGINIA, Appellee: ANDERSON, ROBERT HOMER,
III, (ESQ.), HERRING, MARK RANKIN, (ESQ.).
Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey,
JJ., and Russell, S.J.
W. LEMONS, CHIEF JUSTICE.
appeal, we consider whether it was error to require the
defendant to wear jail-issued clothing that the defendant
claims was identifiable as such to the jury during a jury
Facts and Proceedings
appellant, Robert Allen Wilkins (" Wilkins" ), was
convicted by a jury of petit larceny, third or subsequent
offense, in violation of Code § 18.2-104, in the Circuit
Court of the City of Portsmouth (" circuit court"
). He was sentenced to five years' imprisonment.
his jury trial in the circuit court, Wilkins's counsel
objected to Wilkins being tried while wearing jail-issued
clothing. The only description in the record of Wilkins's
clothing is from his counsel--" a green, sort of scrub
outfit," black sneakers, and " a visible bracelet
on his left arm." The circuit court ordered a recess for
Wilkins's counsel to look for non-jail clothing in "
a clothes closet" maintained by the public
defender's office. The record does not indicate whether
Wilkins's counsel used the opportunity to look for
clothes, nor does it reveal the length of the recess.
the recess, Wilkins's counsel renewed his objection,
explaining to the circuit court that Wilkins's "
lady friend" had twice attempted to bring Wilkins
non-jail-issued clothes but that the Portsmouth City Jail had
refused to accept them both times. The circuit court judge
overruled the objection, saying:
I understand that the normal practice is to, you know, not
have people in jail clothes. I don't know whether the
jury is sophisticated enough to know what jail clothes look
like or not. The difficulty that we always have is that
I've been doing this for almost 50 years, and I can see
somebody in jail clothes and I can generally tell you what
jail they are from, because they tend to vary. It's the
defendant's responsibility to, you know, provide his own
clothes within the parameters of the sheriff's
department. And if he doesn't do it, then I guess we have
to try him in jail clothes.
remained in the courtroom as the jury was brought in. The
record does not contain any of the voir dire before the jury
was empaneled and sworn.
trial, a security guard at a Wal-Mart store in Portsmouth
testified he had seen Wilkins take merchandise off the
shelves and leave the store. When confronted by the security
guard, Wilkins said, " Just let me go. I won't do it
again," and began to take the merchandise out from under
his coat. Additionally, the evidence at trial included five
certified conviction orders showing Wilkins had been
convicted of shoplifting more than three times prior to this
event. The Commonwealth rested and Wilkins did not put on any
evidence. The record does not contain any of the closing
arguments made by either party. The jury ...