# FILED September 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk IN THE COURT OF CRIMINA L APPEALS OF T ENNESSEE AT JACKSON JUNE SESSION, 1999 STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9810- CC-00337 ) Appellee, ) ) ) MADISON COUNTY VS. ) ) HON. ROGER A. PAGE, ERIC JUA N DODD, ) JUDGE ) Appe llant. ) (Misdemeanor Drug Possessi on)

ON APPEAL FROM THE JUDGMENT OF THE CIRCUI T COURT OF MADISON COUNTY
FOR THE APPELLANT : FOR THE APPELLEE : MIKE MOSIER PAUL G. SUM MERS 204 W est Baltimore Attorney Generaland Reporter Jackson, TN 38302-1623 R. STEPHEN JOBE Assistant Attorney General 425 Fifth Avenu e North Nashvill e, TN 37243-0493 JERRY W OODALL Distri ct Attorney General SHAUN BROWN Assistant Distri ct Attorney General Lowell Thomas State Office Build ing Jackson, TN 38301
OPINION FILED ________________________ AFFIRMED DAVID H. WELLES , JUD GE-2- 

# OPINION

The Defendant, Eri c Juan Dodd, appeals f rom his misdemeanor convi ction forsimple possessi on of mariju ana. Defendant was c harged on a two-count indict ment with possessi on of mariju ana with i ntent to s ell and posses sion o f marijuanawith intent to del iver, both in vi olation of Tennessee Code Annotated § 39-17-417. The j ury returned a verdictfor the le sser in clude d offen se of s imple possession on each count, and t he trial ju dge merged the two convictions. Because Defendant committed this off ense while on par

ole, the tri al court sentenced him to eleven months, twe nty-nine days, to be served at seve nty-five percen t, consec utive to the o ffense for w hich he vio lated par ole.

In this appeal , Defendant ar gues that the trial cou rt violate d his right to a fair trialin two ways: (1) by commencing t he jury t rial whi le D ef endant was dressed in a pri son-type j umpsuit wit h letter s representi ng West Tennessee Detention Facility, and (2) by denyi ng his request to try on in the presence of the jury clothi ng found in the duf fel bag containing marijuana. Because we f ind that any error co mm it ted by the tr ial cou rt was h armle ss, we affirm D efend ant’s convicti on and sentence.

The transcri pt of the evidence at t rial r evealed that

SergeantRandal l H ampton and O fficers G reg S lack an d Sha ne La ney of th e Jac kson Polic e Department were pa trolling area motels in conne ction with a n investi gatio n of recentmotel robberi es. While in t he parking l ot of the Super 8 Motel in J ackson, Sergeant Hampton noticed a car speed into t he lotand pull behind park ed cars-3-

but not in to a parkin g space. The driv er, later identified as Defendant, “ jumped out, left t he parking l ights on, and ran into one of the roo ms.” After just a few
mo ments, Defendant exi ted the room wit h another male, they both entered th e car, and Defe ndant d rove away. Ac cording to Hampton, Defendant carried nothing into the motel room but carri ed out a briefcase. The passenger , who had not arrivedwith Defendant , carri ed out a duffel bag. The men threw both ar ticles into the ba ckseat o f the car.
Hampton testified that a nother off icer obtai ned the li cense plate number of the car and Ha mpton rep orted the num ber to his dispatch er. Only a few minutes later, Hampton heard other of ficers stationed at

the Comfort I nn cal l i n th e sa me license tag over t he pol ice r adio . He then advisedofficer s at the Comfort

Inn of what he had ob served a t the Sup er 8 Mo tel.

Officer Slack, who w as patrolling the area of the Com fort Inn the eveni ng i n question , notice d a black male l ater ident ified as Defendant sit

ting in a car outside the C omfort Inn. He test ified t hat he noti ced Defendant because t he motel robbery s uspec ts had be en des cribed as black m ales. The officers dro ve aroun d t he park ing lot seve ral times, a nd whe n they retu rned to th at spot, Defen dant wa s still sitting in the c ar, so they called in his license tag numb er.

Officers Slack an d Lane y stoppe d to talk to Defendant, and Slack test ified thatthey tol d Defenda nt they were patroll ing the area because of recent motel robberies. They asked Defendant for his i dentifi cation, which he produced, and theythen asked him to step out of his ca r so that t he y could pat him down for weapons. The officer s noticed t he briefcas e and duffel ba g in the backseat of the-4-

carand aske d Def enda nt abo ut them . Defe ndan t repor tedly responded that they d id not belong to him; they bel onged to a man named Theodore. Defendant could no t give the office rs The odore’s last nam e.

The two officers asked Defendant for consent to sear

ch the briefcase and duffel bag. Defendant r epeated that the items did not belong to hi m and that he
was at the m otel to “drop some body off.” Then, according to Officer Slack, upon being asked again for consent to sear

ch, Defendant made a statement to the effectof, “Yea h, I don ’t care w hat you do, bu t that’s not my b ag and briefcase .” Slack opened the duf fel bag, r

emoved clothi ng at the to p of the bag, and found a black plastic ba g covering five clear plas tic bags o f what Sla ck believe d to be marijuana. He then searched t he briefcas e and found a small paper bag cont aining approximatel y twenty gr ams of what he beli eved to be marij ua na . Othertestimony

at trial revealed that the su bstanc e was m arijuana; th e quan tity found in the duffel bag totaled 2,136 gram s (approxima tely five pounds), and t he quantity fou nd in the b riefcase w as 18 g rams.

Slack testified that

they found a picture i n the briefcase and that Defendant identified the man a s The odore, th e owne r of the briefc ase an d duffel ba g. Police later learned that the man i n the photograph was Theodore Nelson. Slack stated thatalthough they w ould have charge d Nelso n with pos session of marijua na with inten t to rese ll, they ne ver loca ted him . Office r Lane y testified at trial t o essen ti all y the same facts as Officer Slack, except he stated re garding the
s earch, “ The first fe w times [Officer Sla ck requ ested D efenda nt’s cons ent to search the bags] he sai d he couldn’t , but then h e told him he could go ahead and search them . They weren ’t his.”-5- I. A PPEARANCE I N PRISON CLOTHI NG Defendant first

asserts that bec ause he a ppeared b efore the jury in pris on ga rb—a blue-green jumpsuit wi th letters abbrevi ating West Tennessee Detenti on Facility on the back—the tri al court ab ridged his constit ut ional rights to due process and a fair trial . The State res ponds that Defe ndant fa iled to demo nstrate actual prejudice, and t hus any error is h armless un der Carroll v. S tate , 532 S.W .2d 934, 936 (Tenn. Crim . App. 1975 ).

The seminal cas e on appe arance in pri son ga rb at trialis Estelle v. Williams , 425 U.S. 501 (1976). In that case, Chief Justice Burger, wri ting for the Court, noted that “t he cons tant rem inder o f the ac cuse d’s con dition im plicit in such disti nctive, identifiable a ttire may a ffect a juror’s ju dgme nt” and that “[u]nl ike physical re stra ints, . . . compell ing an accused to wear jailclothi ng further s no essential state po licy.” Id. at 504-05. Howeve r, the Court also recogni zed that many criminaldefendants choose t o wear prison c lothingin a tactical attem pt to elicit juror sym pathy. Id. at 508 . Ther efore, a ccord ing to th e ma jo rity, a defendantmust object to being tri ed in pris on garb before suc h a complaint may be review ed on a ppeal. Id.

The defendant i n Estelle did no t objec t at trial to h is appearance, and t he Supre me C ourt held , [A]lt hough the State canno t, consi stently with th e Fourte enth Ame ndme nt, compel an accuse d to sta nd trial b efore a jury wh ile dressed in ident ifiab le pri son clothes, the fail ure to make an objecti on to the court as to being tri ed in such clothes, for whatever reason, is suff icient to ne gate the presence of compulsion neces sary to es tablish a co nstitutiona l violation. Id. at 512-1 3.-6- In the case at

bar, howeve r, Defendant did make t he proper object ion and his counsel questioned him on the recor d regarding t his object ion. Therefore, the approp riate and ulti mate question for review is whether t he defendant was compelled to appear in prison or jail attire for trial. Id. We conclude tha t the court did not compel him to appear i n the jumpsuit ; furt hermore, even i f the trial cou rt’s action could be construed as compulsion, any error was ha rmle ss beyond a
reason able do ubt.

Prior to commencement of Defen dant’s trial, de fense co unsel ex plained to the court, “ [Defendant’ s] mother was su ppose d to deliver some [civi lian] c lothes here this morning at 8: 00 and apparentl y she didn’ t,” and counsel noted t hat the only alterna tiv e clothi ng to his act ual priso n clothi ng would be the detention center jumpsuit, which is si milar to r egulation prison cl othing. The t rial j udge responded that the jury s hould n ot se e Defendant unti l the i ssue was decided, and he expressed c on cern over a cont inuance because Defendant had previo usly requested a speedy trial . The court decl ared its “ incli nation . . . to go ahead an d try the case.”

Defense couns el replied, “M r. Dodd wants a trial. I’ve advised hi m that he has the right

to interpose an objecti on as to the cl othes that he’s been furnished. I guess maybe the thi ng to do is place him unde r oath a nd let m e que stion h im about it.”

After bei ng sworn, Defen dant, when asked whethe r he wish ed to proceed to trial an d perm it the jury to see h im in th e ju mpsuit, res ponded, “No, not really, but I don’t w ant to kee p putting it off a nd off. Go ahead and get it over with.” Defense coun sel info rmed him th at if he interpos ed an objecti on and the judge ruled in his fa vor, D efend ant lik ely would not be tried f

or another t hree-7-

months. The followi ng colloquy was then held on t he record between Defendant and h is coun sel: Q Mr. Dodd, just let me ask you, do you wish to go to t rial today dressed in the clothe s that you have on , which is [sic ] not c ivil ian clothes? A I don’t, but I do n’t want to g et it put off u ntil Ja nuary. The detaine r has de nied m e too m any privilege s in the pe nitentiary. Q You want us to tr y your case today

as you’ re dress ed now? A I don’t really h ave a ch oice, do I? Q You have a choice to make an ob jectio n as to being putto tri al in that clothi ng. It wi ll be t he Court’s obl igation to rule on tha t objecti on. A Yeah. I’ll obje ct to it. The trial judge the n overrule d the ob jection, stati ng the co urt’s intention to minimize the effec

t upon the j ury by seat ing Defendant at the far side of t he bench where the j ury would never see the let tering on the back of his jum psuit.

We find that the trial judge did no t “compel” D efendant to ap pear i n a jumps uit. “[A] trial co urt’s failure to honor a defendant’s requestnot to b e tried in prison garb does not amount to state compulsi on w h en the defendant has had
a reasonable oppor

tunity to appear

in other c lothes but

fails to do so.” State v. Zonge , 973 S.W.2d 250, 257 (Tenn. Cri m. App. 1997) (ci ting Tarpleyv. Dugger , 841 F.2d 359, 361 ( 11th Ci r. 1988)). In Zonge , we affirm ed the trial cou rt’s conclusion that “ha d the d efend ant be en dil igent, hecould have secur ed other clothes.” Id. (where defendant stated he had sched uled for civil ian clothes to be deliver ed for ori ginal commencement of trialfour days earlier, but because trial
was delaye d, he c ould n o long er obta in civil ian clothi ng). Likewi se, in Tarpley , the Eleventh Circuit

found no compulsio n where the defendant’s wife expl ained thatshe h ad attempted, f our months prior

to tri al, to del iver civili an clothi ng but
was refused the opportunit y. 841 F.2d at

361. In Tarpley , however, the trial court had offered t he defendant addi tional t ime to procure alternate clothi ng and had-8-

suggested local agenci es that co uld likely have de livered him clothing. Id. ; see also United States

v. Grady , 997 F.2d 421, 424 (8t h Cir. 1993) (determini ng that defendantwas not compelled to stand tri al in pri son clothi ng where his counsel contacted his wife and requested civili an clothes, sh e failed to bring them duri ng voir dire, but d efenda nt appe ared in civilian clothing th e rema inder of trial).

In this case, the reco rd reflect s Defendant clea rly i ndicated t hat although he was displeased t

o wear the detention center jumpsui t, he would rather do so than continue the case for a period of time. H e was g iven an o pportun ity to
secure alternate c lothing, bu t that clothing did not arr ive. Under these circumstances, and in li ght of our opi nion in Zonge , we ho ld that th e trial co urt did not com pel Defe ndant to wear the jumps uit.
Furthermore, in the intere st of faci litating fu rther re view, w e add itionally conclude that if

these facts demonstrate a compuls ion to stand trialin pris on attir e, any such error

was harmless beyond a reaso nable d oubt. The trial court
accom mod ated Defendant by pl acing him away f rom the jury , where the detention center let

tering could not be s een; more over, it appears that the bl uegreen jump suit wo rn by D efend ant wa s furnis hed to him as a n altern ate to h is regulation pri son garb, which we assume was more conspicuousl y indicat ive of custody. The record contai ns a photograph of the Defendant wearing the jumps uit, and we ob serve that it do es no t appe ar obv ious th at the ju mps uit is “prison garb.” Finally, D efend ant ap peare d in the jump suit for the d uration of voir dire only; he w as provid ed civilian clo thes for the remain der of his tria l. Any error by the trial co urt was h armles s beyon d a reas onable doubt.-9- II. CLOTHING FROM DUFFEL BAG D efend ant’s second a nd final assignm ent of error is that the trial court impro perly refused to perm it him to try on t he clothi ng contained i n the duffelbag from which the marijuana was seized by police. Defendant intended to show that t he c lothes i n the bag did not belong to hi m, raisingthe infer ence that t he marijuanafound therei n did not bel ong to him. The trialcourt rul ed at tri al that if Defendantdesired to wear the clothes before t he jury, he would be consider ed to have waived hi s privi lege against self- incrimination and be subjectto crossexam ination.

The State conc edes that the trial cou rt erred by ruling that D efend ant wo uld be subje ct to cro ss-exa mina tion. Th e law o f this state is cl ear that ex hibiti ng ones elf before th e jury is non -testimo nial; therefo re, a defendant doesnot waive the privi lege against self-i ncrimination and subject himself to cross-examinat ion in such a situat ion. State v. Rodriguez , 752 S.W.2d 108, 113 (Tenn. Crim. App. 1 988) (“[ W]e hold that the def endant can int roduce, ‘demonst rative real or physical evidence’ by exh ibiting himself to the jury in items o f clothing re levant to the inquiry , whether he testifi es ornot.”); State v. Sanders , 691 S.W.2d 566, 568- 69 (T enn. C rim. App. 1984) . The Rodriguez court found, however, t hat “the evidence of M r. Rodri guez’s gu ilt —apart fr

om the clothing—wa s so overw helm in g thatany error i n denying him t he opportu nity to model the shir t for t he jury was harmless beyond a reasonable doubt . . . anddid not af

fect the j udgment orresult in prejudice to the judicial pro cess.” Id. (citi ng Tenn. R. Crim. P. 52(a) and Tenn. R. App . P. 36(b)).-10- The State argues, however, t hat because Defendant did not take advantage of the trial court’s alternat ive opti on—permitting a compari son of his physical body size to the s ize of the clothes as held up before the jury, because the manner in whi ch a trialis conducted i s withinthe great di scretion of the trial court, and becau se the ev idence brough t by the Sta te to convict Defendant was so strong, the tri al court’ s error does not require a r

eversal of

his convi ction.

D ue process requi res that a defendant be permi tted to pr esent a ful l defense. Chambers v. Missi ssippi , 410 U.S. 284 (1972). This due process right has genera lly been ex amine d by cou rts in the context of presentation of witness testimony. See, e.g. , United States v. Corr , 543 F.2d 10 42, 1051 (2d Cir. 1976). Howeve r, this ri ght to present a full de fense, w hich app lies as we ll to demon strative and real evi dence, may be limited by procedura l and evidentiary
concerns. See United States v. Bifeld , 70 2 F.2d 342 , 350 (2d Cir. 198 3) (“A defen dant’s right

to pres ent a fu ll def

ense, i ncludi ng the ri ght to testif y on hisown b eha lf, is not wi thout li mits.”) . “In r esponding to t he charges against him, an accused must comply wit h the establ ished rul es of procedure and evidence, as must the prosecution, in ord er to ensure a fair trial.” Id. (citi ng Corr , 543 F.2d at 1051).

In United S tates v. D e Stefano , 476 F.2d 32 4 (7th Cir. 1973), the court determined that no violation of a defe ndant’s right to prese nt a full defense oc curs unless the wit ness denied to t he defendant coul d have produced rel evant and material testimon y. Id. at 330 . We believe this inquiry is also appr

opriate f or the circumstancesat hand because we agree with the State that although th e trial court should not ha ve concluded that the act of

tryi ng on clotheswas te stimo nial,-11-

the trial court

nevertheless retains wi de discreti on to regulate the proof during tri al i n accor dance with t he rules of procedure and evi dence. The tri al judge suggested an alte rnative meth od for a ttemp tin g to demon strate to the jury that the clothes we re not the correc t size for the Defen dant to wear.

In this case, upon an examinati on of the record to determine whether Defe ndan t’s requested exhi bition b efore t he jury would have been rel evant or mate rial, we find this argument by defen se counsel : “It just s eems to me that we would be entitl ed to put th at type of demonstrationon to show that we think—I mean, we don’t know. We never tried those clothes on, but we thin k the clot hes will show that they d on’t fit him.” The Defend ant made no offer of proof concerning this evi dence; theref ore the recor

d does no t re flect whet her the clothi ng found in the duffel b ag wou ld have fit the Defen dant. Finall y, we fi nd that
even if thetrialcourt deni ed Defendant’s rightto present a full and fair def

ense, the relatively low probat ive valu e of pro ving tha t the clo thing d id not fit h im— in light of the testimony by t

wo police of

ficers t hat he assisted in obtai ning the duffel bag, wa s in possess ion of theduffel ba g, and had contr ol over t he car with the items—rendered any such error harmless.

We conclude that the r ecord does not r

eflect that Defendant’ s right to due process was d eprive d eithe r by stan ding tria l in prison garb f or a short t ime and with limited exp osure o r by being denied the opp ortunity to exhibit him self to the jury in clothi ng he claim ed did not be long to him. W e there fore affir m his convicti on and sentence.-12- ____________________________________ DAVID H. WELLES , JUD GE

CONCUR:

___________________________________ THOMAS T. WOODALL, J UDGE

___________________________________ NORMA McGE E OGLE, JUDGE