                                    IN THE DISTRICT COURT OF APPEAL
                                    FIRST DISTRICT, STATE OF FLORIDA

ROBERT LEE HENDERSON,               NOT FINAL UNTIL TIME EXPIRES TO
                                    FILE MOTION FOR REHEARING AND
      Appellant,                    DISPOSITION THEREOF IF FILED

v.                                  CASE NO. 1D16-0917

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed March 10, 2017.

An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.

Andy Thomas, Public Defender, and David A. Davis, Assistant Public Defender,
Tallahassee; Bruce Miller, Public Defender, and Katherine R. Jaquet, Assistant
Public Defender, Shalimar, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      AFFIRMED.

WETHERELL and KELSEY, JJ., CONCUR; MAKAR, J., CONCURS WITH
OPINION.
MAKAR, J., concurring.

      On trial for armed robbery, Robert Lee Henderson chose—against the

repeated advice of his attorney and despite an extensive inquiry, abundant

admonitions, and cautious cajoling from the trial judge—to wear his prison

uniform rather than civilian clothes. For inexplicable reasons, Henderson wanted to

wear the black jacket, white polo, and cargo shorts he wore when he was arrested,

but they were not readily available, likely wrinkled and moldy from sitting in the

property room for a year, and inappropriate as trial attire; he chose his prison

jumpsuit instead, rejecting the freshly-laundered courtroom-appropriate clothing

his lawyer provided.

      In what his appellate counsel calls “an unusual, perhaps surreal, issue,”

Henderson argues it was error for the trial judge to require that he also be shackled

during trial, a restraint to which he did not agree. On the first day of trial, prior to

jury selection, the extensive discussion among the trial judge, defense counsel, and

the prosecutor was initially only about whether Henderson could decide—against

his interests—to wear his orange jumpsuit at trial. Once that issue was resolved in

Henderson’s favor, the issue of shackling was raised for the first time, defense

counsel asking that the “shackles be removed” (to reduce the additional negative

impact on the jury of Henderson’s choice of prison clothing) and questioning the

need for them (“I really don’t understand how he would need to be shackled”). The

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trial court, however, viewed the uniform and shackles as a “package deal” that

couldn’t be split apart. Much like “shower shoes,” shackles were merely an

accoutrement of prison garb that would make no difference to the jurors, who

would “figure it out pretty quickly” that Henderson was currently incarcerated.

      But shackles are qualitatively different than an orange jumpsuit or standard

issue PVC prison shower sandals; the former is an inherently prejudicial physical

restraint that implies dangerousness that might easily bias a jury. For this reason,

courts have required a necessity justification if a defendant is compelled to wear a

physical restraint, which was not established in this case. See Bello v. State, 547

So. 2d 914, 918 (Fla. 1989) (“Shackling is an ‘inherently prejudicial practice,’

Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525

(1986), and must not be done absent at least some showing of necessity.”).

Henderson did not request or agree to wear shackles; he asked only to wear his

prison garb, which can be a legitimate trial strategy. See, e.g., Estelle v. Williams,

425 U.S. 501, 508 (1976) (“[I]t is not an uncommon defense tactic to produce the

defendant in jail clothes in the hope of eliciting sympathy from the jury.”);

Demurjian v. State, 727 So. 2d 324, 327 (Fla. 4th DCA 1999) (“Counsel testified

that it was his tactic to have the jury notice that appellant was wearing prison garb

to evoke sympathy.”). Henderson’s trial counsel argued that the shackles would

make a bad situation worse, but did not specifically ask the trial judge to make

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findings on necessity, which are an obvious safeguard of a fair trial under the

Constitution whether requested or not. Miller v. State, 852 So. 2d 904, 906–07

(Fla. 4th DCA 2003) (“[I]t seems to me that a prudent judge should initiate the

inquiry into a defendant's restraints or shackles at trial, even where there is no

objection. This would remove the issue from the post conviction relief arena,

where a separate hearing will almost always be required on the issue.”) (Gross, J.,

concurring).

      All this said, though the trial court should have made a finding on the

necessity of forcing Henderson to wear shackles, it cannot be concluded that this

error was other than harmless on the unique and slender record in this case. See

Carlisle v. State, 105 So. 3d 625, 627 (Fla. 5th DCA 2013) (“While the trial court

erred in requiring Mr. Carlisle to be shackled in the jury's presence, the error was

harmless.”). The record fails to reflect whether or to what extent the jury could see

the shackles, a very important factor. See id. (noting that the trial court “took

action to limit the jury’s awareness of the shackles”). And it is irresolvable on the

record presented what marginal prejudicial impact the shackles may have had on a

jury that, by Henderson’s own choice, saw him in prison garb; the predictable

prejudicial impact of Henderson’s voluntary and informed decision to dress as a

prisoner may have been enough for the jury to see him in a different light, the

additional prejudice of the shackles notwithstanding.

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      The trial judge, in an attempt to lessen the prejudicial effects of Henderson’s

sartorial choice, told the jury:

      Mr. Henderson has made an affirmative decision to be tried in this
      case while wearing clothing issued by the Okaloosa County Jail. This
      fact must not and cannot be taken into consideration by you during
      your deliberations, since what a person wears during trial does not
      constitute evidence of any kind. Furthermore, you must not and
      cannot make any inferences towards Mr. Henderson’s guilt or
      innocence based upon the clothing he has chosen to wear during this
      trial. If Mr. Henderson’s clothing has any affect [sic] on your
      deliberations or verdict, it will be an invalid verdict.

The intent of this jury instruction is laudable; the trial judge was trying to constrain

Henderson’s self-inflicted harm. Because it mentions only “clothing,” it may have

highlighted to some jurors that Henderson’s choice extended to only his jumpsuit

and not the shackles, thereby inferentially suggesting they were necessary for

courtroom security purposes. But again, the record gives us nothing upon which to

rely in assessing the matter. And the trial judge’s questioning of the jury post-

verdict (asking whether Henderson’s “appearance in jail clothing influence[d] your

verdict in any way?”) confirmed that all jurors believed they had made an

independent judgment based only on the evidence at trial. For these reasons, and

the sufficient evidence to support the jury’s verdict, the trial judge’s failure to

establish the necessity of the shackles did not result in a miscarriage of justice.

§ 59.041, Fla. Stat. (2017).



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