IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,

v. TERRY JOEL CAVER, Appellant. (••o (. C^3 f c.

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o r-^L::: «^J ~<: ^-- No. 73761-9-1 DIVISION ONE

PUBLISHED OPINION
FILED: September6, 2016 Leach, J. — Terry Caver appeals his conviction for possession of 

### methamphetamine. He contends that the trial court violated his constitutional 

### right to a fairtrial when it denied his requestto wearjailclothes at trial. Also, he challenges the trial court's exclusion of detailed testimony about his attempts to obtain drug treatment injail after his arrest. Finally, he requests that ifthe State prevails in this appeal, this court decline to award it costs. Because wearing civilianclothes at trial does not inherently prejudice a defendant, ordering Caver to wear them does not implicate his constitutional rights. And because the trial court had reasonable grounds to deny Caver's request to wearjail clothes, the trial court did not abuse its discretion in doing so. Caver's attempts to get 

### treatment in jailare notrelevantto any issue at trial. The trial court did notabuse 

### its discretion by excluding testimony about those attempts. Andbecause CaverNO. 73761-9-1/2 

### is only 53 years old, was sentenced to only 90 days injail, and can petition the trial court for relief if he continues to be unable to pay the costs, we decline 

### Caver's request that we denyappellate costs to the State. Weaffirm.
FACTS 

### On May 13, 2015, Terry Caver called 911 and asked to be taken for treatment because he "was having a mental breakdown." He was high on methamphetamine (meth). 

### Two police officers responded. They found Caver as he left the Everett FootClinic, where he had gone for help. Caver had his hands in his jacket 

### pockets. Heappeared afraid and paranoid. Oneoftheofficers ordered Caverto remove his hands from his pockets. When he did so, he held an open pocket 

### knife. He dropped the knife when the police asked him to. Theofficers then detained Caver and frisked him forweapons. During the frisk, Officer Timothy 

### O'Hara felt what he recognized to be a meth pipe. Theofficers arrested Caver. In a search incident to this arrest, they found a "baggie" containing a small
amount of meth. 

### Caver asked the officers to take him to triage for mental health and drug 

### abuse treatment instead ofjail. Theofficers booked him into Snohomish County Jail. Officer O'Hara explained at trial that they did so because the jail has

-2-NO. 73761-9-1/3


### available mental health professionals and separate housing for inmates with
mental health issues. Caver remained incustody when his trial began two months later. At the start of trial, he asked the trialcourtfor permission to wear his jailclothes in front 

### of thejury. He explained that the clothes "representthat I'm in here, that I'm not on the street. It represents] what's really going on in mylife. Idon'twant these 

### people thinking that I'm on the streets when I'm not on the streets."1 Thetrial court denied Caver's request, stating that "it causes much mischief if the defendant is clothed in regular jail garb." The court explained to Caver that 

### wearing jail clothes would cause thejury to speculate about why he was injail and whether he posed a dangerto them. Before trial, the State asked the court to exclude evidence that Caver 

### requested treatment rather than incarceration. It argued this evidence was not relevant to whether Caver knowingly possessed drugs and would merely create 

### sympathyfor Caver. Caver responded that the statements wererelevantfor his unwitting possession defense, which posited that hewould not havecalled 911 if he knew he had meth in his pocket. The trial court initially indicated itwould exclude evidence about Caver's requests and about the available drug and 

### mental health treatment injail, seeing both topics as irrelevant. After further 1 Caver's trial counsel told the courtthat she had instructed Caverto dress in civilian clothes. -3-NO. 73761-9-1/4 

### argument, though, the trial court reversed itself and allowed both types of
evidence. The trial court did not exclude either category of evidence during Officer O'Hara's testimony. O'Hara described a "triage"facility, which treats people who have mental health issues or are underthe influence ofdrugs. He acknowledged 

### that Caver requested several times to go to a triage facility. Then he described Snohomish County Jail's mental health and treatmentfacilities and services. Cavertestified that he had tried unsuccessfully to gettreatment in jail. He 

### said that he had given up because the line was long and he was also waiting for a bed. The trial court sustained an objection to Caver's further testimony about his attempts to gettreatment, rulingthattestimony irrelevant. 

### The jury found Caverguilty ofone count ofmethamphetamine possession. Caver appeals. ANALYSIS Request To Wear Jail Clothes First, Cavercontends thatthe trial court violated his due process rights by not allowing him to wearjailclothes at trial. 

### The right to a fair trial entitles a defendant to appear "freefrom all bonds
or shackles except in extraordinary circumstances."2 Adefendant has the right
2State v. Finch, 137 Wn.2d 792, 842-43, 975 P.2d 967 (1999). -4-NO. 73761-9-1/5



### not to appear injail or prison clothing.3 These rights stem from the defendant's presumption of innocence and a right to be free from measures that unfairly prejudice thejury.4 Contrary to Caver's apparent argument, they do not include a broad freedom forthe defendantto express himselfthrough his dress. When a defendant challenges a trial management decision, we normally review the decision for abuse of discretion.5 When the decision is "inherently 

### prejudicial," we scrutinize it closely, asking if it was "necessary to further an essential state interest."6 To determine if a courtroom arrangement is "'inherently 

### prejudicial,'" we ask if it presents "'an unacceptable risk'" of bringing "'impermissible factors'" into play.7 This risk comes from "'the wider range of 

### inferences that a jurormight reasonablydraw'" from the arrangement.8 We use "reason, principle, and common human experience" to evaluate the likely effects 

### of a measure on a juror'sjudgment.9

3 Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 48 L. Ed. 2d 126(1976). 4 Finch, 137 Wn.2d at 844-45. 5 State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (2010). 6Finch, 137 Wn.2d at 846 (quoting Estelle, 425 U.S. at 504). 7Jaime, 168 Wn.2d at 862 (quoting In re Pers. Restraint ofWoods, 154 Wn.2d 400, 417, 114 P.3d 607 (2005)). 8Jaime, 168 Wn.2d at 862 (quoting Holbrook v. Flvnn, 475 U.S. 560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)). 9 Estelle, 425 U.S. at 504. -5-NO. 73761-9-1/6 

### Compelling a defendant to stand trial before a jury in identifiable prison clothes10 or in bonds or shackles11 is inherently prejudicial for four reasons. These measures erode the presumption of innocence, which entitles the 

### defendantto be "brought before the court with the appearance, dignity, and self

### respect of a free and innocent man."12 They single out the defendant "as a particularly dangerous or guilty person" and show "the need to separate [the] defendantfrom the community at large."13 They offend the dignity of the judicial 

### process.14 And shackles restrict a defendant's abilitytoassistcounsel andtestify

on the defendant's own behalf.15 A trial court raises none ofthese concerns when itdirects a defendant not 

### to dress in jail clothing. In State v. Gilcrist,16 the Supreme Court rejected the 

### argument that the trial courtviolated the defendants' rights byrequiring them to 

### wearstate-provided civilian clothes. Itdistinguished Estelle v. Williams,17 where the defendant "'appeared at trial in clothes that were distinctly marked as prison

10 Estelle, 425 U.S. at 504-05. 11 Finch, 137Wn.2dat842. 12 Finch, 137Wn.2dat844. 13 Finch, 137 Wn.2d at 845 (quoting Holbrook, 475 U.S. at 568-69). 14 Finch, 137 Wn.2d at 845 (holding trial court abused its discretion in 

### allowing defendantto be shackled duringtrial and sentencing). 15Finch, 137Wn.2dat845. 16 91 Wn.2d 603, 610, 590 P.2d 809 (1979); see also State v. Stevens, 35 Wn. App. 68, 71-72, 665 P.2d 426 (1983). 17 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126(1976). -6-NO. 73761-9-1/7

issue.'"18 In Gilcrist, the trial court compelled the defendants to appear "in sports coats, slacks, ties and shirts."19 The Supreme Court held the defendants did not have a constitutional right to selecttheir own clothing for trial and, noting the trial 

### court's reasonable explanation, affirmed itsjudgment.20 Here, as in Gilcrist, the trial court's decision did not create an 

### unacceptable risk ofprejudice.21 Compelling Caver to wear civilian clothes did not erode the "physical indicia of [his] innocence," as requiring him to wearjail clothes or shackles would.22 It did the opposite by making him appear as any 

### member of the public.23 Similarly, civilian clothes did not single Caver out "as a 

### particularly dangerous orguilty person."24 Andcivilian clothes did notoffend the dignity of the judicial process or restrict Caver's ability to assist counsel and 

### testify.25 Because the trial court's decision created no risk of bringing "impermissible factors" into play for the jury, that decision was not inherently 

### prejudicial. Thus, we decline to apply the close scrutiny Caverargues for. We instead conclude that the trial court did not abuse its discretion. It 

### reasonably determined that allowing Caver to wear jail clothes would cause 18 Gilcrist, 91 Wn.2d at 610 (quoting Estelle, 425 U.S. at 502). 19 Gilcrist, 91 Wn.2dat610. 20Gilcrist, 91 Wn.2dat610. 21 See Estelle, 425 U.S. at 504-05. 22See Finch, 137 Wn.2d at 844. 23 See Gilcrist, 91 Wn.2d at 610. 24See Finch, 137 Wn.2d at 845. 25 See Finch, 137 Wn.2d at 845. -7-NO. 73761-9-1/8
"much mischief." As the trial court explained, this attire could cause the jury to 

### speculate about why Caver was injail and whether he was dangerous. The trial court did not need to engage Caver in a colloquy or make 

### findings on the record beforerequiring him to appear in civilian clothes. These procedural safeguards are necessary to protectconstitutional rights, including a defendant's right to counsel and a prisoner's "liberty interest in avoiding the unwanted administration of antipsychotic drugs."26 Caver can show no such right 

### to appear injail clothes. He contends that the trial court's decision violated his 

### right to present a complete defense by undermining his credibility and not allowing him "to be as honest as possible with the jury about his circumstances"—but that right does not include a right to appear in jail clothes. The link between Caver's jail attire and his truthfulness, which he contends the 

### jury would make, defies "reason, principle, and common human experience."27 And Caver fulfilled his stated objective in wearing jail clothes—letting the jury 

### know "what's really going onin [his] life"—by telling them about hisexperiences. 

### His opportunity totestify satisfied anyinterest he had in appearing candid with thejury.

26 Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L Ed. 2d 178(1990). 27 Estelle, 425 U.S. at 504. -8-NO. 73761-9-1/9 

### Finally, courts' observations that defendants sometimes choose to wear 

### jail clothes as atrial tactic donot imply thatdefendants have a right to doso.28 As discussed above, no such rightexists, and a trial court can restrict that choice


### so long as it does not abuse its discretion. Accordingly, we hold that the trial courtdid not err in requiring Caverto wearcivilianclothes at trial. Evidentiary Rulings Caver also contends that the trial court erred in excluding testimony about his attempts to gettreatment in jail. We review a trial court's decision to exclude evidence for abuse of discretion.29 A criminal defendant's right to present a defense extends to "'relevant evidence that is not otherwise inadmissible.'"30 But "a criminal 

### defendant has no constitutional right to have irrelevant evidence admitted in his
or her defense."31 Evidence is relevant where ithas "any tendency to make the 

### existence of any fact that is ofconsequence to the determination of the action 

### moreprobableor lessprobablethan itwould bewithouttheevidence."32

28 See Estelle, 425 U.S. at 507-08; Felts v. Estelle, 875 F.2d 785, 786 (9th Cir. 1989). 29 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001). 30 State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006) 

### (quoting State v. Rehak, 67Wn. App. 157, 162, 834 P.2d651 (1992)). 31 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983). 32ER401. -9-NO. 73761-9-1/10
Here, the trial court allowed Caver to testify that he called 911 multiple times seeking treatment and about his unsuccessful attempts to get treatment 

### when he was in jail after his arrest. The trial court sustained the State's objection only when his counsel continued down that path, asking about a specific person Cavertalked to in his effortto obtain in-jailtreatment. The trial court did not exclude any relevant evidence. The State charged Caver with possession of methamphetamine, a crime with two elements: 

### possession ofmethamphetamine occurring in Washington. Caver's defense at trialwas unwitting possession: in short, that he would not have called 911 ifhe had known he still had meth in his pocket.33 Caver's proposed testimony about 

### his specific attempts to obtain treatment after his arrest could not have "any tendency" to make any fact ofconsequence to the drug possession charge or unwitting possession defense "more or less probable," as Caver made those 

### attempts after the crime and arrestoccurred.34 Appellate Costs 

### Finally, Caver contends that this court should not impose on him the costs 

### of his appeal. The trial courtfound Caver indigent and waived alldiscretionary
33 As the trial court noted, Caver's was a dubious case for unwitting 

### possession, since he admitted the meth was his but simply thought he did not have any left when he called 911. Nonetheless, the trial court allowed the defense instruction. 34ER401. -10-NO. 73761-9-1/11
legal financial obligations. Caver asserts that imposing costs on an indigent appellant is contrary to law. He asserts, alternatively, that this court should exercise its discretion notto impose appellate costs against him. "The commissioner or clerk 'will' award costs to the State ifthe State is the substantially prevailing party on review, 'unless the appellate court directs otherwise in its decision terminating review."'35 When a party raises the issue in its brief, we will exercise our discretion to decide ifcosts are appropriate.36 We base our decision on factors the parties set forth in their briefs rather than remanding to thetrialcourt.37 An indigent defendant "'does not have
... a right to an appeal at public expense, if he [or she] can afford to pay for that appeal'" by the time the State 

### enforces collection or sanctions the defendantfor nonpayment.38 This court has thus declined, as a matter of course, to waive appellate costs for indigent

35 State v. Sinclair, 192Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP 14.2), review denied 185 Wn.2d 1034 (2016). 36 Sinclair, 192Wn. App. at 388-90. 37 Sinclair, 192 Wn. App. at 389-90. As with requests for attorney fees on appeal, "a shortparagraph oreven a sentence" would be sufficient. Sinclair, 192 Wn. App. at 390. The parties provide such arguments here. 38 State v. Nolan, 98 Wn. App. 75, 80, 988 P.2d 473 (1999) (second alteration in original) (internal quotation marks omitted) (quoting State v. Blank, 131 Wn.2d 230, 250, 930 P.2d 1213 (1997)). '"[RCW 10.73.160] simply provides a mechanism for recouping the funds advanced to ensure [the defendant's] right ofappeal.'" Nolan, 98 Wn. App. at 80 (internal quotation marks omitted) (quoting Blank, 131 Wn.2d at 250). -11-NO. 73761-9-1/12
defendants.39 We instead conduct an "individualized inquiry" into the defendant's 

### presentand likelyfuture abilityto pay.40 Unless a trial court finds that an indigent defendant's financial condition has improved, we presume the defendant 

### continues to be indigent.41 This present ability to pay is one factor in this court's decision whether to impose costs, but it is not the only factor, "nor is it 

### necessarily an indispensablefactor."42 In State v. Sinclair,43 this court denied appellate costs to the State. The trial court had ruled the defendant indigent. The trial court did not find, and the 

### State presented no evidence on appeal, that the defendant's financial condition
was likely to improve. This court therefore presumed that the defendant remained indigent. This court further saw "no realistic possibility," given that the defendant was 66 years old and received a 280-month prison sentence, that he 

### would be ableto pay appellate costs.44

39 Sinclair, 192 Wn. App. at 391; Nolan, 98 Wn. App. at 80; see also Blank, 131 Wn.2d at 252-53. "To decide that appellate costs should never be 

### imposed as a matter ofpolicy no more comports with a responsible exercise of discretion than to decide that they should always be imposed as a matter of policy." Sinclair, 192 Wn. App. at 391. 40 Sinclair, 192Wn. App. at 391. 41 RAP 15.2(f). 42 Sinclair, 192Wn. App. at 389. 

### 43 192 Wn. App. 380, 393, 367 P.3d 612, reviewdenied, 185 Wn.2d 1034 (2016).44 Sinclair, 192Wn. App. at 393.-12-NO. 73761-9-1/13


### In contrast, the SupremeCourtdetermined in State v. Blank45thatdenying the State's appellate cost request would be premature. There, as in Sinclair, the defendant was indigent and incarcerated. Butunlike Sinclair, the recordin Blank 

### did not support the defendant's speculationthat hewould be unable to payin the future. The court reasoned that "[i]f in the future repayment will impose a 

### manifest hardship on defendant, orifhe is unable, through no fault of hisown, to 

### repay, [RCW 10.73.160(4)] allowsforremission ofthe costsaward."46 Here, the trial court found Caver indigent for purposes of appeal and 

### authorized payment of his costs and fees by the State. Because, as in Sinclair, the State has presented no trial court order finding that Caver's financial condition has improved or is likely to improve, we presume that Caverremains 

### indigent. But, as in Blank, therecord contains noinformation about Caver'slikely future abilitytopay, notwithstanding his presentindigency.47 He isonly 53 years old and was in jail for only 90 days. Unlike Sinclair, there is a "realistic 

### possibility" on theslim record now beforethecourtthatCaverwill be able topay costs in the future.48 Accordingly, we decline to deny the State costs as the 

### prevailing partyonappeal.49
45 131 Wn.2d 230, 252-53, 930 P.2d 1213 (1997). 46 Blank, 131 Wn.2dat253. 47See Blank, 131 Wn.2d at 253. 48 See Sinclair, 192Wn. App. at 393. 49 RAP 14.2. -13-NO. 73761-9-1/14


### This does not leave Caverwithout reliefifhe cannot pay.50 Former RCW 10.73.160(4) (1995) allows the sentencing courtto remit costs to the defendant if 

### paymentwould "impose manifest hardship on the defendant [or] the defendant's immediatefamily."51 CONCLUSION Because compelling Caver to wear civilian clothes was not inherently 

### prejudicialand the trial court based itsdecision on tenable grounds, the trial court did not abuse its discretion in denying Caver's request to wear jail clothes. Because evidence about Caver's efforts to obtain drug treatment in jail were not relevant, the trial court properly excluded that evidence. And because there is a 

### realistic possibilitythat Caver will be able to pay appellate costs and Caver can challenge those costs if he cannotafford to pay ifand when the State attempts to collect them, we decline Caver's request that we deny the State costs. We
affirm.

WE CONCUR: 

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50See Blank, 131 Wn.2d at 242. 51 Nolan, 98 Wn. App. at 79. -14-