      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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STATE OF WASHINGTON,                               No. 73761-9-1                     •""-'


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TERRY JOEL CAVER,                                                                            in--'—
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                     Appellant.                    FILED: September6, 2016


       Leach, J. — Terry Caver appeals his conviction for possession of

methamphetamine.       He contends that the trial court violated his constitutional

right to a fair trial when it denied his request to wear jail clothes at trial. Also, he

challenges the trial court's exclusion of detailed testimony about his attempts to

obtain drug treatment in jail after his arrest. Finally, he requests that if the State

prevails in this appeal, this court decline to award it costs. Because wearing

civilian clothes at trial does not inherently prejudice a defendant, ordering Caver

to wear them does not implicate his constitutional rights. And because the trial

court had reasonable grounds to deny Caver's request to wear jail clothes, the

trial court did not abuse its discretion in doing so.        Caver's attempts to get

treatment in jail are not relevant to any issue at trial. The trial court did not abuse

its discretion by excluding testimony about those attempts. And because Caver
NO. 73761-9-1/2




is only 53 years old, was sentenced to only 90 days in jail, and can petition the
trial court for relief if he continues to be unable to pay the costs, we decline

Caver's request that we deny appellate costs to the State. We affirm.

                                     FACTS


        On May 13, 2015, Terry Caver called 911 and asked to be taken for
treatment because he "was having a mental breakdown." He was high on

methamphetamine (meth).

        Two police officers responded. They found Caver as he left the Everett

Foot Clinic, where he had gone for help. Caver had his hands in his jacket

pockets. He appeared afraid and paranoid. One of the officers ordered Caver to
remove his hands from his pockets. When he did so, he held an open pocket

knife. He dropped the knife when the police asked him to. The officers then

detained Caver and frisked him for weapons. During the frisk, Officer Timothy

O'Hara felt what he recognized to be a meth pipe. The officers arrested Caver.

In a search incident to this arrest, they found a "baggie" containing a small

amount of meth.

        Caver asked the officers to take him to triage for mental health and drug

abuse treatment instead of jail. The officers booked him into Snohomish County

Jail.   Officer O'Hara explained at trial that they did so because the jail has



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NO. 73761-9-1/3




available mental health professionals and separate housing for inmates with

mental health issues.


       Caver remained in custody when his trial began two months later. At the

start of trial, he asked the trial court for permission to wear his jail clothes in front

of the jury. He explained that the clothes "represent that I'm in here, that I'm not

on the street. It represents] what's really going on in my life. I don't want these

people thinking that I'm on the streets when I'm not on the streets."1 The trial

court denied Caver's request, stating that "it causes much mischief if the

defendant is clothed in regular jail garb." The court explained to Caver that

wearing jail clothes would cause the jury to speculate about why he was in jail

and whether he posed a danger to them.

       Before trial, the State asked the court to exclude evidence that Caver

requested treatment rather than incarceration. It argued this evidence was not

relevant to whether Caver knowingly possessed drugs and would merely create

sympathy for Caver. Caver responded that the statements were relevant for his

unwitting possession defense, which posited that he would not have called 911 if

he knew he had meth in his pocket. The trial court initially indicated it would

exclude evidence about Caver's requests and about the available drug and

mental health treatment in jail, seeing both topics as irrelevant. After further

       1 Caver's trial counsel told the court that she had instructed Caver to dress
in civilian clothes.
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NO. 73761-9-1/4




argument, though, the trial court reversed itself and allowed both types of

evidence.


      The trial court did not exclude either category of evidence during Officer

O'Hara's testimony. O'Hara described a "triage" facility, which treats people who

have mental health issues or are under the influence of drugs. He acknowledged

that Caver requested several times to go to a triage facility. Then he described

Snohomish County Jail's mental health and treatment facilities and services.

       Caver testified that he had tried unsuccessfully to get treatment in jail. He

said that he had given up because the line was long and he was also waiting for

a bed. The trial court sustained an objection to Caver's further testimony about

his attempts to get treatment, ruling that testimony irrelevant.

       The jury found Caver guilty of one count of methamphetamine possession.

Caver appeals.

                                      ANALYSIS


       Request To Wear Jail Clothes

       First, Caver contends that the trial court violated his due process rights by

not allowing him to wear jail clothes at trial.

       The right to a fair trial entitles a defendant to appear "free from all bonds

or shackles except in extraordinary circumstances."2 A defendant has the right


       2 State v. Finch, 137 Wn.2d 792, 842-43, 975 P.2d 967 (1999).
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NO. 73761-9-1/5




not to appear in jail or prison clothing.3 These rights stem from the defendant's

presumption of innocence and a right to be free from measures that unfairly

prejudice the jury.4 Contrary to Caver's apparent argument, they do not include a

broad freedom for the defendant to express himself through his dress.

      When a defendant challenges a trial management decision, we normally

review the decision for abuse of discretion.5 When the decision is "inherently

prejudicial," we scrutinize it closely, asking if it was "necessary to further an

essential state interest."6 To determine if a courtroom arrangement is "'inherently

prejudicial,'" we ask if it presents "'an unacceptable risk'" of bringing

"'impermissible factors'" into play.7 This risk comes from "'the wider range of

inferences that a juror might reasonably draw'" from the arrangement.8 We use

"reason, principle, and common human experience" to evaluate the likely effects

of a measure on a juror's judgment.9




     3 Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 48 L. Ed. 2d
126(1976).
       4 Finch, 137 Wn.2d at 844-45.
       5 State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (2010).
       6 Finch, 137 Wn.2d at 846 (quoting Estelle, 425 U.S. at 504).
       7 Jaime, 168 Wn.2d at 862 (quoting In re Pers. Restraint of Woods, 154
Wn.2d 400, 417, 114 P.3d 607 (2005)).
       8 Jaime, 168 Wn.2d at 862 (quoting Holbrook v. Flvnn, 475 U.S. 560, 569,
106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)).
       9 Estelle, 425 U.S. at 504.
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NO. 73761-9-1/6




      Compelling a defendant to stand trial before a jury in identifiable prison

clothes10 or in bonds or shackles11 is inherently prejudicial for four reasons.

These measures erode the presumption of innocence, which entitles the

defendant to be "brought before the court with the appearance, dignity, and self-

respect of a free and innocent man."12 They single out the defendant "as a

particularly dangerous or guilty person" and show "the need to separate [the]

defendant from the community at large."13 They offend the dignity of the judicial

process.14 And shackles restrict a defendant's ability to assist counsel and testify

on the defendant's own behalf.15

      A trial court raises none of these concerns when it directs a defendant not

to dress in jail clothing. In State v. Gilcrist,16 the Supreme Court rejected the

argument that the trial court violated the defendants' rights by requiring them to

wear state-provided civilian clothes. It distinguished Estelle v. Williams,17 where

the defendant "'appeared at trial in clothes that were distinctly marked as prison




       10 Estelle, 425 U.S. at 504-05.
       11 Finch, 137Wn.2dat842.
       12 Finch, 137Wn.2dat844.
       13 Finch, 137 Wn.2d at 845 (quoting Holbrook, 475 U.S. at 568-69).
       14 Finch, 137 Wn.2d at 845 (holding trial court abused its discretion in
allowing defendant to be shackled during trial and sentencing).
       15 Finch, 137Wn.2dat845.
     16 91 Wn.2d 603, 610, 590 P.2d 809 (1979); see also State v. Stevens, 35
Wn. App. 68, 71-72, 665 P.2d 426 (1983).
     17 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126(1976).
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NO. 73761-9-1/7




issue.'"18 In Gilcrist, the trial court compelled the defendants to appear "in sports

coats, slacks, ties and shirts."19 The Supreme Court held the defendants did not

have a constitutional right to select their own clothing for trial and, noting the trial

court's reasonable explanation, affirmed its judgment.20

        Here,   as in Gilcrist, the trial court's decision did         not create an

unacceptable risk of prejudice.21 Compelling Caver to wear civilian clothes did

not erode the "physical indicia of [his] innocence," as requiring him to wear jail

clothes or shackles would.22 It did the opposite by making him appear as any

member of the public.23 Similarly, civilian clothes did not single Caver out "as a

particularly dangerous or guilty person."24 And civilian clothes did not offend the

dignity of the judicial process or restrict Caver's ability to assist counsel and

testify.25   Because the trial court's decision created no risk of bringing

"impermissible factors" into play for the jury, that decision was not inherently

prejudicial. Thus, we decline to apply the close scrutiny Caver argues for.

        We instead conclude that the trial court did not abuse its discretion.        It

reasonably determined that allowing Caver to wear jail clothes would cause

        18 Gilcrist, 91 Wn.2d at 610 (quoting Estelle, 425 U.S. at 502).
        19 Gilcrist, 91 Wn.2dat610.
        20 Gilcrist, 91 Wn.2dat610.
        21 See Estelle, 425 U.S. at 504-05.
        22 See Finch, 137 Wn.2d at 844.
        23 See Gilcrist, 91 Wn.2d at 610.
        24 See Finch, 137 Wn.2d at 845.
        25 See Finch, 137 Wn.2d at 845.
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NO. 73761-9-1/8




"much mischief." As the trial court explained, this attire could cause the jury to

speculate about why Caver was in jail and whether he was dangerous.

       The trial court did not need to engage Caver in a colloquy or make

findings on the record before requiring him to appear in civilian clothes. These

procedural safeguards are necessary to protect constitutional rights, including a

defendant's right to counsel and a prisoner's "liberty interest in avoiding the

unwanted administration of antipsychotic drugs."26 Caver can show no such right

to appear in jail clothes. He contends that the trial court's decision violated his

right to present a complete defense by undermining his credibility and not

allowing him "to be as honest as possible with the jury about his

circumstances"—but that right does not include a right to appear in jail clothes.

The link between Caver's jail attire and his truthfulness, which he contends the

jury would make, defies "reason, principle, and common human experience."27
And Caver fulfilled his stated objective in wearing jail clothes—letting the jury

know "what's really going on in [his] life"—by telling them about his experiences.

His opportunity to testify satisfied any interest he had in appearing candid with

the jury.




      26 Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L
Ed. 2d 178(1990).
        27 Estelle, 425 U.S. at 504.
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NO. 73761-9-1/9




       Finally, courts' observations that defendants sometimes choose to wear

jail clothes as a trial tactic do not imply that defendants have a right to do so.28

As discussed above, no such right exists, and a trial court can restrict that choice

so long as it does not abuse its discretion. Accordingly, we hold that the trial

court did not err in requiring Caver to wear civilian clothes at trial.

       Evidentiary Rulings

       Caver also contends that the trial court erred in excluding testimony about

his attempts to get treatment in jail.

       We review a trial court's decision to exclude evidence for abuse of

discretion.29   A criminal defendant's right to present a defense extends to

"'relevant evidence that is not otherwise inadmissible.'"30               But "a criminal

defendant has no constitutional right to have irrelevant evidence admitted in his

or her defense."31 Evidence is relevant where it has "any tendency to make the

existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence."32




       28 See Estelle, 425 U.S. at 507-08; Felts v. Estelle, 875 F.2d 785, 786 (9th
Cir. 1989).
       29 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
       30 State v. Mee Hui Kim, 134 Wn. App. 27, 41, 139 P.3d 354 (2006)
(quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
       31 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
       32ER401.
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NO. 73761-9-1/10




       Here, the trial court allowed Caver to testify that he called 911 multiple

times seeking treatment and about his unsuccessful attempts to get treatment

when he was in jail after his arrest. The trial court sustained the State's objection

only when his counsel continued down that path, asking about a specific person

Caver talked to in his effort to obtain in-jail treatment.

       The trial court did not exclude any relevant evidence. The State charged

Caver with possession of methamphetamine, a crime with two elements:

possession of methamphetamine occurring in Washington. Caver's defense at

trial was unwitting possession: in short, that he would not have called 911 if he

had known he still had meth in his pocket.33 Caver's proposed testimony about

his specific attempts to obtain treatment after his arrest could not have "any

tendency" to make any fact of consequence to the drug possession charge or

unwitting possession defense "more or less probable," as Caver made those

attempts after the crime and arrest occurred.34

       Appellate Costs

       Finally, Caver contends that this court should not impose on him the costs

of his appeal. The trial court found Caver indigent and waived all discretionary


       33 As the trial court noted, Caver's was a dubious case for unwitting
possession, since he admitted the meth was his but simply thought he did not
have any left when he called 911. Nonetheless, the trial court allowed the
defense instruction.
      34ER401.
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NO. 73761-9-1/11




legal financial obligations.   Caver asserts that imposing costs on an indigent

appellant is contrary to law.     He asserts, alternatively, that this court should

exercise its discretion not to impose appellate costs against him.

       "The commissioner or clerk 'will' award costs to the State if the State is the


substantially prevailing party on review, 'unless the appellate court directs

otherwise in its decision terminating review. "'35 When a party raises the issue in

its brief, we will exercise our discretion to decide if costs are appropriate.36 We

base our decision on factors the parties set forth in their briefs rather than

remanding to the trial court.37

       An indigent defendant "'does not have ... a right to an appeal at public

expense, if he [or she] can afford to pay for that appeal'" by the time the State

enforces collection or sanctions the defendant for nonpayment.38 This court has

thus declined, as a matter of course, to waive appellate costs for indigent




       35 State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP
14.2), review denied 185 Wn.2d 1034 (2016).
       36 Sinclair, 192 Wn. App. at 388-90.
       37 Sinclair, 192 Wn. App. at 389-90. As with requests for attorney fees on
appeal, "a short paragraph or even a sentence" would be sufficient. Sinclair, 192
Wn. App. at 390. The parties provide such arguments here.
        38 State v. Nolan, 98 Wn. App. 75, 80, 988 P.2d 473 (1999) (second
alteration in original) (internal quotation marks omitted) (quoting State v. Blank,
131 Wn.2d 230, 250, 930 P.2d 1213 (1997)). '"[RCW 10.73.160] simply provides
a mechanism for recouping the funds advanced to ensure [the defendant's] right
of appeal.'" Nolan, 98 Wn. App. at 80 (internal quotation marks omitted) (quoting
Blank, 131 Wn.2d at 250).
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NO. 73761-9-1/12




defendants.39 We instead conduct an "individualized inquiry" into the defendant's

present and likely future ability to pay.40 Unless a trial court finds that an indigent

defendant's financial condition has improved, we presume the defendant

continues to be indigent.41 This present ability to pay is one factor in this court's

decision whether to impose costs, but it is not the only factor, "nor is it

necessarily an indispensable factor."42

       In State v. Sinclair,43 this court denied appellate costs to the State. The

trial court had ruled the defendant indigent. The trial court did not find, and the

State presented no evidence on appeal, that the defendant's financial condition

was likely to improve.      This court therefore presumed that the defendant

remained indigent. This court further saw "no realistic possibility," given that the

defendant was 66 years old and received a 280-month prison sentence, that he

would be able to pay appellate costs.44




       39 Sinclair, 192 Wn. App. at 391; Nolan, 98 Wn. App. at 80; see also
Blank, 131 Wn.2d at 252-53. "To decide that appellate costs should never be
imposed as a matter of policy no more comports with a responsible exercise of
discretion than to decide that they should always be imposed as a matter of
policy." Sinclair, 192 Wn. App. at 391.
       40 Sinclair, 192 Wn. App. at 391.
       41 RAP 15.2(f).
       42 Sinclair, 192 Wn. App. at 389.
       43 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034
(2016).
       44 Sinclair, 192 Wn. App. at 393.
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NO. 73761-9-1/13




          In contrast, the Supreme Court determined in State v. Blank45 that denying

the State's appellate cost request would be premature. There, as in Sinclair, the

defendant was indigent and incarcerated. But unlike Sinclair, the record in Blank

did not support the defendant's speculation that he would be unable to pay in the

future.     The court reasoned that "[i]f in the future repayment will impose a

manifest hardship on defendant, or if he is unable, through no fault of his own, to

repay, [RCW 10.73.160(4)] allows for remission of the costs award."46
          Here, the trial court found Caver indigent for purposes of appeal and

authorized payment of his costs and fees by the State. Because, as in Sinclair,

the State has presented no trial court order finding that Caver's financial

condition has improved or is likely to improve, we presume that Caver remains

indigent. But, as in Blank, the record contains no information about Caver's likely

future ability to pay, notwithstanding his present indigency.47 He is only 53 years

old and was in jail for only 90 days.             Unlike Sinclair, there is a "realistic

possibility" on the slim record now before the court that Caver will be able to pay

costs in the future.48 Accordingly, we decline to deny the State costs as the

prevailing party on appeal.49


          45 131 Wn.2d 230, 252-53, 930 P.2d 1213 (1997).
          46 Blank, 131 Wn.2dat253.
          47 See Blank, 131 Wn.2d at 253.
          48 See Sinclair, 192 Wn. App. at 393.
          49 RAP 14.2.
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NO. 73761-9-1/14




          This does not leave Caver without relief if he cannot pay.50 Former RCW

10.73.160(4) (1995) allows the sentencing court to remit costs to the defendant if

payment would "impose manifest hardship on the defendant [or] the defendant's

immediate family."51

                                   CONCLUSION


          Because compelling Caver to wear civilian clothes was not inherently

prejudicial and the trial court based its decision on tenable grounds, the trial court

did not abuse its discretion in denying Caver's request to wear jail clothes.

Because evidence about Caver's efforts to obtain drug treatment in jail were not

relevant, the trial court properly excluded that evidence. And because there is a

realistic possibility that Caver will be able to pay appellate costs and Caver can

challenge those costs if he cannot afford to pay if and when the State attempts to

collect them, we decline Caver's request that we deny the State costs.            We

affirm.




                                                        Jj2*^frt J^
WE CONCUR:




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          50 See Blank, 131 Wn.2d at 242.
          51 Nolan, 98 Wn. App. at 79.
                                         -14-
