        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



                                          -2-
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

                                         -3-
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.”

                                          -4-
                     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.



                                           -5-
       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

                                          -6-
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

                                           -7-
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.




                                           -8-
                       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)).




                                          -9-
         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,

                                         -10-
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.




                                          -11-
                         ____________________________________
                         DAVID H. WELLES, JUDGE



CONCUR:



___________________________________
THOMAS T. WOODALL, JUDGE


___________________________________
NORMA McGEE OGLE, JUDGE




                             -12-
