FILED

September 7, 1999

Cecil Crowson, Jr.

Appellate Court Clerk

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

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 JUAN DODD, ) JUDGE

)

Appellant. ) (Misdemeanor Drug Possession)

ON APPEAL FROM THE JUDGMENT OF THE

CIRCUIT COURT OF MADISON COUNTY

FOR THE APPELLANT: FOR THE APPELLEE:

MIKE MOSIER PAUL G. SUMMERS

204 West Baltimore Attorney General and Reporter

Jackson, TN 38302-1623

R. STEPHEN JOBE

Assistant Attorney General

425 Fifth Avenue North

Nashville, TN 37243-0493

JERRY WOODALL

District Attorney General

SHAUN BROWN

Assistant District Attorney General

Lowell Thomas State Office Building

Jackson, TN 38301

OPINION FILED ________________________

AFFIRMED

DAVID H. WELLES, JUDGE
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OPINION

The Defendant, Eric Juan Dodd, appeals from his misdemeanor conviction

for simple possession of marijuana. Defendant was charged on a two-count

indictment with possession of marijuana with intent to sell and possession of

marijuana with intent to deliver, both in violation of Tennessee Code Annotated

§ 39-17-417. The jury returned a verdict for the lesser included offense of simple

possession on each count, and the trial judge merged the two convictions.

Because Defendant committed this offense while on parole, the trial court

sentenced him to eleven months, twenty-nine days, to be served at seventy-five

percent, consecutive to the offense for which he violated parole. 

In this appeal, Defendant argues that the trial court violated his right to a

fair trial in two ways: (1) by commencing the jury trial while Defendant was

dressed in a prison-type jumpsuit with letters representing West Tennessee

Detention Facility, and (2) by denying his request to try on in the presence of the

jury clothing found in the duffel bag containing marijuana. Because we find that

any error committed by the trial court was harmless, we affirm Defendant’s

conviction and sentence.

The transcript of the evidence at trial revealed that Sergeant Randall

Hampton and Officers Greg Slack and Shane Laney of the Jackson Police

Department were patrolling area motels in connection with an investigation of

recent motel robberies. While in the parking lot of the Super 8 Motel in Jackson,

Sergeant Hampton noticed a car speed into the lot and pull behind parked cars
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but not into a parking space. The driver, later identified as Defendant, “jumped

out, left the parking lights on, and ran into one of the rooms.” After just a few

moments, Defendant exited the room with another male, they both entered the

car, and Defendant drove away. According to Hampton, Defendant carried

nothing into the motel room but carried out a briefcase. The passenger, who had

not arrived with Defendant, carried out a duffel bag. The men threw both articles

into the backseat of the car. 

Hampton testified that another officer obtained the license plate number of

the car and Hampton reported the num ber to his dispatcher. Only a few minutes

later, Hampton heard other officers stationed at the Comfort Inn call in the same

license tag over the police radio. He then advised officers at the Comfort Inn of

what he had observed at the Super 8 Motel. 

Officer Slack, who was patrolling the area of the Comfort Inn the evening

in question, noticed a black male later identified as Defendant sitting in a car

outside the Comfort Inn. He testified that he noticed Defendant because the

motel robbery suspects had been described as black males. The officers drove

around the parking lot several times, and when they returned to that spot,

Defendant was still sitting in the car, so they called in his license tag number. 

Officers Slack and Laney stopped to talk to Defendant, and Slack testified

that they told Defendant they were patrolling the area because of recent motel

robberies. They asked Defendant for his identification, which he produced, and

they then asked him to step out of his car so that they could pat him down for

weapons. The officers noticed the briefcase and duffel bag in the backseat of the
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car and asked Defendant about them . Defendant reportedly responded that they

did not belong to him; they belonged to a man named Theodore. Defendant

could not give the officers Theodore’s last name. 

The two officers asked Defendant for consent to search the briefcase and

duffel bag. Defendant repeated that the items did not belong to him and that he

was at the motel to “drop somebody off.” Then, according to Officer Slack, upon

being asked again for consent to search, Defendant made a statement to the

effect of, “Yeah, I don’t care what you do, but that’s not my bag and briefcase.”

Slack opened the duffel bag, removed clothing at the top of the bag, and found

a black plastic bag covering five clear plastic bags of what Slack believed to be

marijuana. He then searched the briefcase and found a small paper bag

containing approximately twenty grams of what he believed to be marijuana.

Other testimony at trial revealed that the substance was marijuana; the quantity

found in the duffel bag totaled 2,136 grams (approximately five pounds), and the

quantity found in the briefcase was 18 grams. 

Slack testified that they found a picture in the briefcase and that Defendant

identified the man as Theodore, the owner of the briefcase and duffel bag. Police

later learned that the man in the photograph was Theodore Nelson. Slack stated

that although they would have charged Nelson with possession of marijuana with

intent to resell, they never located him. Officer Laney testified at trial to

essentially the same facts as Officer Slack, except he stated regarding the

search, “The first few times [Officer Slack requested Defendant’s consent to

search the bags] he said he couldn’t, but then he told him he could go ahead and

search them . They weren’t his.” 
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I. APPEARANCE IN PRISON CLOTHING

Defendant first asserts that because he appeared before the jury in prison

garb—a blue-green jumpsuit with letters abbreviating West Tennessee Detention

Facility on the back—the trial court abridged his constitutional rights to due

process and a fair trial. The State responds that Defendant failed to demonstrate

actual prejudice, and thus any error is harmless under Carroll v. State, 532

S.W.2d 934, 936 (Tenn. Crim. App. 1975).

The seminal case on appearance in prison garb at trial is Estelle v.

Williams, 425 U.S. 501 (1976). In that case, Chief Justice Burger, writing for the

Court, noted that “the constant rem inder of the accused’s condition implicit in

such distinctive, identifiable attire may affect a juror’s judgment” and that “[u]nlike

physical restraints, . . . compelling an accused to wear jail clothing furthers no

essential state policy.” Id. at 504-05. However, the Court also recognized that

many criminal defendants choose to wear prison clothing in a tactical attem pt to

elicit juror sympathy. Id. at 508. Therefore, according to the majority, a

defendant must object to being tried in prison garb before such a complaint may

be reviewed on appeal. Id. 

The defendant in Estelle did not object at trial to his appearance, and the

Supreme Court held, 

[A]lthough the State cannot, consistently with the Fourteenth

Amendment, compel an accused to stand trial before a jury while

dressed in identifiable prison clothes, the failure to make an

objection to the court as to being tried in such clothes, for whatever

reason, is sufficient to negate the presence of compulsion

necessary to establish a constitutional violation. 

Id. at 512-13. 
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In the case at bar, however, Defendant did make the proper objection and

his counsel questioned him on the record regarding this objection. Therefore, the

appropriate and ultimate question for review is whether the defendant was

compelled to appear in prison or jail attire for trial. Id. We conclude that the court

did not compel him to appear in the jumpsuit; furthermore, even if the trial court’s

action could be construed as compulsion, any error was harmless beyond a

reasonable doubt.

Prior to commencement of Defendant’s trial, defense counsel explained to

the court, “[Defendant’s] mother was supposed to deliver some [civilian] clothes

here this morning at 8:00 and apparently she didn’t,” and counsel noted that the

only alternative clothing to his actual prison clothing would be the detention

center jumpsuit, which is similar to regulation prison clothing. The trial judge

responded that the jury should not see Defendant until the issue was decided,

and he expressed concern over a continuance because Defendant had

previously requested a speedy trial. The court declared its “inclination . . . to go

ahead and try the case.” 

Defense counsel replied, “Mr. Dodd wants a trial. I’ve advised him that he

has the right to interpose an objection as to the clothes that he’s been furnished.

I guess maybe the thing to do is place him under oath and let me question him

about it.” After being sworn, Defendant, when asked whether he wished to

proceed to trial and perm it the jury to see him in the jumpsuit, responded, “No,

not really, but I don’t want to keep putting it off and off. Go ahead and get it over

with.” Defense counsel informed him that if he interposed an objection and the

judge ruled in his favor, Defendant likely would not be tried for another three
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months. The following colloquy was then held on the record between Defendant

and his counsel:

Q Mr. Dodd, just let me ask you, do you wish to go to trial today

dressed in the clothes that you have on, which is [sic] not civilian

clothes? 

A I don’t, but I don’t want to get it put off until January. The

detainer has denied me too many privileges in the penitentiary. 

Q You want us to try your case today as you’re dressed now?

A I don’t really have a choice, do I?

Q You have a choice to make an objection as to being put to

trial in that clothing. It will be the Court’s obligation to rule on that

objection.

A Yeah. I’ll object to it.

The trial judge then overruled the objection, stating the court’s intention to

minimize the effect upon the jury by seating Defendant at the far side of the

bench where the jury would never see the lettering on the back of his jumpsuit.

We find that the trial judge did not “compel” Defendant to appear in a

jumpsuit. “[A] trial court’s failure to honor a defendant’s request not to be tried in

prison garb does not amount to state compulsion when the defendant has had

a reasonable opportunity to appear in other clothes but fails to do so.” State v.

Zonge, 973 S.W.2d 250, 257 (Tenn. Crim. App. 1997) (citing Tarpley v. Dugger,

841 F.2d 359, 361 (11th Cir. 1988)). In Zonge, we affirm ed the trial court’s

conclusion that “had the defendant been diligent, he could have secured other

clothes.” Id. (where defendant stated he had scheduled for civilian clothes to be

delivered for original commencement of trial four days earlier, but because trial

was delayed, he could no longer obtain civilian clothing). Likewise, in Tarpley,

the Eleventh Circuit found no compulsion where the defendant’s wife explained

that she had attempted, four months prior to trial, to deliver civilian clothing but

was refused the opportunity. 841 F.2d at 361. In Tarpley, however, the trial court

had offered the defendant additional time to procure alternate clothing and had
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suggested local agencies that could likely have delivered him clothing. Id.; see

also United States v. Grady, 997 F.2d 421, 424 (8th Cir. 1993) (determining that

defendant was not compelled to stand trial in prison clothing where his counsel

contacted his wife and requested civilian clothes, she failed to bring them during

voir dire, but defendant appeared in civilian clothing the remainder of trial). 

In this case, the record reflects Defendant clearly indicated that although

he was displeased to wear the detention center jumpsuit, he would rather do so

than continue the case for a period of time. He was given an opportunity to

secure alternate clothing, but that clothing did not arrive. Under these

circumstances, and in light of our opinion in Zonge, we hold that the trial court did

not compel Defendant to wear the jumpsuit.

Furthermore, in the interest of facilitating further review, we additionally

conclude that if these facts demonstrate a compulsion to stand trial in prison

attire, any such error was harmless beyond a reasonable doubt. The trial court

accommodated Defendant by placing him away from the jury, where the

detention center lettering could not be seen; moreover, it appears that the bluegreen jumpsuit worn by Defendant was furnished to him as an alternate to his

regulation prison garb, which we assume was more conspicuously indicative of

custody. The record contains a photograph of the Defendant wearing the

jumpsuit, and we observe that it does not appear obvious that the jumpsuit is

“prison garb.” Finally, Defendant appeared in the jumpsuit for the duration of voir

dire only; he was provided civilian clothes for the remainder of his trial. Any error

by the trial court was harmless beyond a reasonable doubt. 
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II. CLOTHING FROM DUFFEL BAG

Defendant’s second and final assignment of error is that the trial court

improperly refused to permit him to try on the clothing contained in the duffel bag

from which the marijuana was seized by police. Defendant intended to show that

the clothes in the bag did not belong to him, raising the inference that the

marijuana found therein did not belong to him. The trial court ruled at trial that

if Defendant desired to wear the clothes before the jury, he would be considered

to have waived his privilege against self-incrimination and be subject to crossexamination. 

The State concedes that the trial court erred by ruling that Defendant would

be subject to cross-examination. The law of this state is clear that exhibiting

oneself before the jury is non-testimonial; therefore, a defendant does not waive

the privilege against self-incrimination and subject himself to cross-examination

in such a situation. State v. Rodriguez, 752 S.W.2d 108, 113 (Tenn. Crim. App.

1988) (“[W]e hold that the defendant can introduce, ‘demonstrative real or

physical evidence’ by exhibiting himself to the jury in items of clothing relevant to

the inquiry, whether he testifies or not.”); State v. Sanders, 691 S.W.2d 566, 568-

69 (Tenn. Crim. App. 1984). The Rodriguez court found, however, that “the

evidence of Mr. Rodriguez’s guilt—apart from the clothing—was so overwhelming

that any error in denying him the opportunity to model the shirt for the jury was

harmless beyond a reasonable doubt . . . and did not affect the judgment or result

in prejudice to the judicial process.” Id. (citing Tenn. R. Crim. P. 52(a) and Tenn.

R. App. P. 36(b)). 
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The State argues, however, that because Defendant did not take

advantage of the trial court’s alternative option—permitting a comparison of his

physical body size to the size of the clothes as held up before the jury, because

the manner in which a trial is conducted is within the great discretion of the trial

court, and because the evidence brought by the State to convict Defendant was

so strong, the trial court’s error does not require a reversal of his conviction.

Due process requires that a defendant be permitted to present a full

defense. Chambers v. Mississippi, 410 U.S. 284 (1972). This due process right

has generally been examined by courts in the context of presentation of witness

testimony. See, e.g., United States v. Corr, 543 F.2d 1042, 1051 (2d Cir. 1976).

However, this right to present a full defense, which applies as well to

demonstrative and real evidence, may be limited by procedural and evidentiary

concerns. See United States v. Bifeld, 702 F.2d 342, 350 (2d Cir. 1983) (“A

defendant’s right to present a full defense, including the right to testify on his own

behalf, is not without limits.”). “In responding to the charges against him, an

accused must comply with the established rules of procedure and evidence, as

must the prosecution, in order to ensure a fair trial.” Id. (citing Corr, 543 F.2d at

1051).

In United States v. DeStefano, 476 F.2d 324 (7th Cir. 1973), the court

determined that no violation of a defendant’s right to present a full defense occurs

unless the witness denied to the defendant could have produced relevant and

material testimony. Id. at 330. We believe this inquiry is also appropriate for the

circumstances at hand because we agree with the State that although the trial

court should not have concluded that the act of trying on clothes was testimonial,
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the trial court nevertheless retains wide discretion to regulate the proof during trial

in accordance with the rules of procedure and evidence. The trial judge

suggested an alternative method for attempting to demonstrate to the jury that

the clothes were not the correct size for the Defendant to wear.

In this case, upon an examination of the record to determine whether

Defendant’s requested exhibition before the jury would have been relevant or

material, we find this argument by defense counsel: “It just seems to me that we

would be entitled to put that type of demonstration on to show that we think—I

mean, we don’t know. We never tried those clothes on, but we think the clothes

will show that they don’t fit him.” The Defendant made no offer of proof

concerning this evidence; therefore the record does not reflect whether the

clothing found in the duffel bag would have fit the Defendant. Finally, we find that

even if the trial court denied Defendant’s right to present a full and fair defense,

the relatively low probative value of proving that the clothing did not fit him—in

light of the testimony by two police officers that he assisted in obtaining the duffel

bag, was in possession of the duffel bag, and had control over the car with the

items—rendered any such error harmless.

 

We conclude that the record does not reflect that Defendant’s right to due

process was deprived either by standing trial in prison garb for a short time and

with limited exposure or by being denied the opportunity to exhibit himself to the

jury in clothing he claimed did not belong to him. W e therefore affirm his

conviction and sentence.
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____________________________________

DAVID H. WELLES, JUDGE

CONCUR:

___________________________________

THOMAS T. WOODALL, JUDGE

___________________________________

NORMA McGEE OGLE, JUDGE