No Prejudice Shown from Defendant’s Jail Garb

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A defendant who was wearing jail-issued clothing when tried for petit larceny, third offense, is not entitled to have his conviction reversed due to prejudice before the jury, the Supreme Court of Virginia holds.

The only description in the record of defen­dant’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 defendant’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 defendant’s counsel used the opportunity to look for clothes, nor does it reveal the length of the recess.

After the recess, defense counsel renewed his objection, explaining to the court that de­fendant’s “lady friend” had twice attempted to bring defendant non-jail-issued clothes but the Portsmouth City Jail had refused to ac­cept them both times. The circuit judge over­ruled the objection. A divided panel of the Court of Appeals upheld defendant’s larceny conviction.

This appeal presents a very narrow ques­tion for resolution: whether defendant’s at­tire was “readily identifiable” as jail-issued clothing.

We hold that defendant bears the burden of proving that the clothing defendant wore at trial was readily identifiable to the jury as jail attire. We find support for this in the language of Estelle v. Williams, 425 U.S. 501 (1976): Even the narrow language of the holding emphasizes that the constitutional violation occurs only when the defendant is dressed in “identifiable prison clothes.”

A record that shows the defendant wore clothes marked with the word “jail” or “pris­on” would go far in helping the defendant meet his or her burden. Clothing marked with serial numbers or other indicia of incar­ceration would also weigh in favor of a defen­dant satisfying that burden.

In this case, the evidence in the record is inadequate for defendant to meet his burden of proving that the clothing he wore at trial was readily identifiable as jail attire. There is no indication that defendant’s outfit was marked in any manner that would indicate it was from the Portsmouth City Jail, or any other detention facility. Neither the “sneak­ers” nor the “visible bracelet” as described in this record are clear indicia of incarceration. There are no photographs in the record of ei­ther defendant’s attire specifically or the uni­form given to Portsmouth City Jail inmates generally. Because we determine that defen­dant has failed to meet his burden of proving that his clothing at trial was readily identi­fiable as jail-issued clothing, we do not need to reach the question whether defendant was compelled to wear said clothing. Likewise, we do not need to address whether defendant’sfailure to obtain non-jail clothing was a result of his own actions in bad faith.

Judgment affirmed.

Wilkins v. Commonwealth (Lemons) No. 151068, June 2, 2016; Va.Ct.App.; Sonya W. Roots for appellant; Robert H. Anderson III, Sr. AAG; Mark R. Herring, AG, for appellee. VLW 016-6-037, 7 pp.