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Wilkins v. Commonwealth

Supreme Court of Virginia

June 2, 2016

ROBERT ALLEN WILKINS
v.
COMMONWEALTH OF VIRGINIA

          FROM THE COURT OF APPEALS OF VIRGINIA.

         For ROBERT ALLEN WILKINS, Appellant: WEAVER, SONYA ALFREDA, (ESQ.).

         For COMMONWEALTH OF VIRGINIA, Appellee: ANDERSON, ROBERT HOMER, III, (ESQ.), HERRING, MARK RANKIN, (ESQ.).

         PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell, S.J.

          OPINION

         DONALD W. LEMONS, CHIEF JUSTICE.

         In this 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 trial.

         I. Facts and Proceedings

         The 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.

         Before 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.

         After 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.

         Wilkins 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.

         At 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 ...


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