State v. Eric Dodd

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT JACKSON
JUNE SESSION, 1999 FILED
September 7, 1999
STATE OF TENNESSEE, ) C.C.A. NO. 02C01-9810-CC-00337
) Cecil Crowson, Jr.
Appellee, ) Appellate Court Clerk
)
) MADISON COUNTY
VS. )
) HON. ROGER A. PAGE,
ERIC JUAN DODD, ) JUDGE
)
Appe llant. ) (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 W est Baltimore Attorney General and Reporter
Jackson, TN 38302-1623
R. STEPHEN JOBE
Assistant Attorney General
425 Fifth Avenu e North
Nashville, TN 37243-0493
JERRY W OODALL
District Attorney General
SHAUN BROWN
Assistant District Attorney General
Lowell Thomas State Office Building
Jackson, TN 38301
OPINION FILED ________________________
AFFIRMED
DAVID H. WELLES, JUDGE
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 le sser in clude d offen se of s imple
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, 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 argues that the trial cou rt violate d 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 co mm itted by the tr ial cou rt was h armle ss, we affirm D efend ant’s
conviction and sentence.
The transcript of the evidence at trial revealed that Sergeant Randall
Hampton and O fficers G reg S lack an d Sha ne La ney of th e Jac kson Police
Department were pa trolling area motels in conne ction with a n investigatio n 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 park ed 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 ba ckseat o f the car.
Hampton testified that another officer obtained the license 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 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 ob served a t the Sup er 8 Mo tel.
Officer Slack, who w as patrolling the area of the Com fort 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 s uspec ts had be en des cribed as black m ales. The officers dro ve
around the 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 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 aske d Def enda nt abo ut them . Defe ndan t repor tedly responded that they
did not belong to him; they belonged 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 search the briefcase and
duffel bag. Defendant repeated that the items did not belong to him 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 search, Defendant made a statement to the
effect of, “Yea h, I don ’t care w hat you do, bu t that’s not my b ag and briefcase .”
Slack opened the duffel bag, removed clothing at the top 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 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 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 the
quantity fou nd in the b riefcase w as 18 g rams.
Slack testified that they found a picture in 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 in the photograph was Theodore Nelson. Slack stated
that although they w ould have charge d Nelso n with pos session of marijua na with
intent to rese ll, they ne ver loca ted him . Office r Lane y testified at trial to
essen tially the same facts as Officer Slack, except he stated regarding the
search, “The first fe w times [Officer Sla ck requ ested D efenda nt’s cons ent 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 bec ause he a ppeared b efore 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 Defe ndant fa iled to demo nstrate
actual prejudice, and thus 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 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 cons tant rem inder o f the ac cuse d’s con dition im plicit in
such distinctive, identifiable a ttire may a ffect a juror’s ju dgme nt” and that “[u]nlike
physical restraints, . . . compelling an accused to wear jail clothing furthers no
essential state po licy.” 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 sym pathy. Id. at 508 . Ther efore, a ccord ing to th e ma jority, a
defendant must object to being tried in prison garb before such a complaint may
be review ed on a ppeal. Id.
The defendant in Estelle did no t objec t at trial to h is appearance, and the
Supre me C ourt held ,
[A]lthough the State canno t, consistently with th e Fourte enth
Ame ndme nt, compel an accused to sta nd trial b efore a jury wh ile
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
neces sary to es tablish a co nstitutiona l violation.
Id. at 512-1 3.
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In the case at bar, howeve r, Defendant did make the proper objection and
his counsel questioned him on the record regarding this objection. Therefore, the
approp riate and ultimate question for review is whether the 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 in the jumpsuit; furthermore, even if the trial cou rt’s
action could be construed as compulsion, any error was harmle 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 [civilian] clothes
here this morning at 8:00 and apparently she didn’t,” and counsel noted that the
only alterna tive 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 s hould n ot see Defendant until the issue was decided,
and he expressed concern over a continuance because Defendant had
previo usly requested a speedy trial. The court declared its “inclination . . . to go
ahead an d try the case.”
Defense couns el replied, “M r. 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 unde r oath a nd let m e que stion h im
about it.” After being sworn, Defendant, when asked whethe r he wish ed to
proceed to trial an d perm it the jury to see h im in th e jumpsuit, responded, “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 interposed an objection and the
judge ruled in his fa vor, Defend ant 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 h is coun sel:
Q Mr. Dodd, just let me ask you, do you wish to go to trial today
dressed in the clothe s that you have on , which is [sic ] not civilian
clothes?
A I don’t, but I do n’t want to g et it put off until January. The
detaine r has de nied m e too m any privilege s in the pe nitentiary.
Q You want us to try your case today as you’re dressed now?
A I don’t really h ave a ch oice, 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 obje ct to it.
The trial judge the n overrule d the ob jection, 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 jum psuit.
W e find that the trial judge did no t “compel” D efendant to ap pear in a
jumps uit. “[A] trial co urt’s failure to honor a defendant’s request not to b e 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 cou rt’s
conclusion that “ha d the d efend ant be en 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 delaye d, he c ould n o long er obta in 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 co uld likely have de livered 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, sh e failed to bring them during
voir dire, but d efenda nt appe ared in civilian clothing th e rema inder of trial).
In this case, the reco rd 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. H e was g iven an o pportun ity to
secure alternate c lothing, bu t that clothing did not arrive. Under these
circumstances, and in light of our opinion 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 facilitating fu rther re view, w e add itionally
conclude that if these facts demonstrate a compulsion to stand trial in prison
attire, any such error was harmless beyond a reaso nable d oubt. The trial court
accommodated Defendant by placing him away from the jury, where the
detention center lettering could not be s een; more over, it appears that the blue-
green jump suit wo rn by D efend ant wa s furnis hed to him as an altern ate to h is
regulation prison garb, which we assume was more conspicuously indicative of
custody. The record contains a photograph of the Defendant wearing the
jumps uit, and we observe 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.
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II. CLOTHING FROM DUFFEL BAG
Defendant’s second a nd final assignm ent of error is that the trial court
impro perly refused to perm it 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 cross-
exam 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 clear that exhibiting
ones elf before th e jury is non -testimo nial; therefo re, 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 exh ibiting himself to the jury in items o f clothing re levant to
the inquiry, whether he testifies or not.”); State v. Sanders , 691 S.W.2d 566, 568-
69 (Tenn. C rim. App. 1984). The Rodriguez court found, however, that “the
evidence of Mr. Rodriguez’s guilt—apart from the clothing—was so overw helm ing
that any error in denying him the opportu nity 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 pro cess.” 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 s ize 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 becau se the ev idence brough t by the Sta te 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 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 right to present a full defense, w hich app lies as we ll to
demon strative and real evidence, may be limited by procedura l and evidentiary
concerns. See United States v. Bifeld , 702 F.2d 342 , 350 (2d Cir. 198 3) (“A
defen dant’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 ord er to ensure a fair trial.” Id. (citing Corr, 543 F.2d at
1051).
In United S tates v. D eStefano, 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 the defendant could have produced relevant and
material testimon y. 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 ha ve concluded that the act of trying on clothes was te stimo nial,
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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 alte rnative meth od for a ttemp ting to demonstrate to the jury that
the clothes we re not the correc t size for the Defen dant to wear.
In this case, upon an examination of the record to determine whether
Defe ndan t’s requested exhibition before the jury would have been relevant or
mate rial, 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 b ag wou ld have fit the Defen dant. Finally, we find that
even if the trial court denied Defendant’s right to present a full and fair defense,
the relatively low probative valu e of pro ving tha t the clo thing d id not fit h im— 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.
W e conclude that the record does not reflect that Defendant’s right to due
process was d eprive d eithe r by stan ding tria l in prison garb for a short time and
with limited exp osure o r by being denied the opp ortunity to exhibit him self to the
jury in clothing he claim ed did not be long to him. W e there fore affir m his
conviction and sentence.
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____________________________________
DAVID H. WELLES, JUDGE
CONCUR:
___________________________________
THOMAS T. WOODALL, JUDGE
___________________________________
NORMA McGEE OGLE, JUDGE
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