PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Russell,
S.J.

ROBERT ALLEN WILKINS
                                                              OPINION BY
v. Record No. 151068                               CHIEF JUSTICE DONALD W. LEMONS
                                                               June 2, 2016
COMMONWEALTH OF VIRGINIA


                       FROM THE COURT OF APPEALS OF VIRGINIA

        In this appeal, we consider whether it was error to require the defendant to wear jail-

issued clothing that the defendant claims was identifiable as such to the jury during a jury trial.

                                       I. Facts and Proceedings

        The appellant, Robert Allen Wilkins (“Wilkins”), was convicted by a jury of petit

larceny, third or subsequent offense, in violation of Code § 18.2-104, in the Circuit Court of the

City of Portsmouth (“circuit court”). He was sentenced to five years’ imprisonment.

        Before his jury trial in the circuit court, Wilkins’s counsel objected to Wilkins being tried

while wearing jail-issued clothing. The only description in the record of Wilkins’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 Wilkins’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 Wilkins’s counsel used the opportunity to look for clothes, nor does it reveal the length

of the recess.

        After the recess, Wilkins’s counsel renewed his objection, explaining to the circuit court

that Wilkins’s “lady friend” had twice attempted to bring Wilkins non-jail-issued clothes but that

the Portsmouth City Jail had refused to accept them both times. The circuit court judge

overruled the objection, saying:
               I understand that the normal practice is to, you know, not have
               people in jail clothes. I don’t know whether the jury is
               sophisticated enough to know what jail clothes look like or not.
               The difficulty that we always have is that I’ve been doing this for
               almost 50 years, and I can see somebody in jail clothes and I can
               generally tell you what jail they are from, because they tend to
               vary. It’s the defendant’s responsibility to, you know, provide his
               own clothes within the parameters of the sheriff’s department.
               And if he doesn’t do it, then I guess we have to try him in jail
               clothes.

Wilkins remained in the courtroom as the jury was brought in. The record does not contain any

of the voir dire before the jury was empaneled and sworn.

       At trial, a security guard at a Wal-Mart store in Portsmouth testified he had seen Wilkins

take merchandise off the shelves and leave the store. When confronted by the security guard,

Wilkins said, “Just let me go. I won’t do it again,” and began to take the merchandise out from

under his coat. Additionally, the evidence at trial included five certified conviction orders

showing Wilkins had been convicted of shoplifting more than three times prior to this event.

The Commonwealth rested and Wilkins did not put on any evidence. The record does not

contain any of the closing arguments made by either party. The jury was instructed that Wilkins

was presumed innocent until proven guilty, but did not receive any instruction concerning his

clothing or appearance at trial.

       While the jury was deliberating, the circuit court judge said:

               Since we might have some confusion there are a couple of things I
               want to put on the record. Obviously this is my point of view from
               what has occurred but nonetheless, I want them on the record.

               At one point in time the defendant wanted to be here and then
               didn’t want to be here, and then he did. I want the record to reflect
               he’s been present during all parts of the trial, including the
               preparation of the instructions. I would also comment that the
               defendant’s conduct here today has been somewhat less than civil,
               but such interruptions that we have had were largely spontaneous.
               They were not things I could prevent ahead of time. I certainly



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                tried. Whatever extent that may influence the trial, it is a problem
                the defendant created for himself.

                I think he failed to produce [street] clothes, which falls into what I
                view as a pattern of trying to avoid going to trial in this matter.
                This case has been pending since April. It has been continued
                three times. There has been [sic] three lawyers, because the
                defendant has been dissatisfied with counsel. And even as late as
                yesterday, he tried to get a continuance for what the Court viewed
                as no good reason. Obviously, he didn't get a continuance, and I
                think the issue with the jail clothes is part of that pattern.

The jury returned with a guilty verdict. After a penalty phase hearing—none of which is in the

record—the jury returned with a sentence of five years’ imprisonment. The circuit court held a

brief hearing before imposing the jury’s verdict as Wilkins’s sentence.

        Wilkins appealed his conviction to the Court of Appeals, and a divided panel affirmed the

conviction. Wilkins v. Commonwealth, 64 Va. App. 711, 771 S.E.2d 705 (2015). The Court of

Appeals first held that the Commonwealth had not compelled Wilkins to wear jail-issued

clothing because the circuit court had “afforded appellant a reasonable opportunity to procure

street clothes by ordering a recess so that defense counsel could explore alternatives to the jail

clothing.” Id. at 716-17, 771 S.E.2d at 707 (internal quotation marks, alteration and citation

omitted). Next, the Court of Appeals concluded that even if there had been compulsion,

“viewing the circumstances in the light most favorable to the Commonwealth . . . , the record

fails to establish that appellant’s clothing at trial actually was clearly identifiable as jail

clothing.” Id. at 718, 771 S.E.2d at 708. Finally, the Court of Appeals ruled that Wilkins’s

appearance at trial in jail-issued clothing was a product of his own actions, and that the evidence

could not support reversing the circuit court’s “specific finding of fact” that Wilkins had been

“acting in bad faith.” Id. at 719, 771 S.E.2d at 709. The dissenting judge disagreed and stated

that the Commonwealth had the burden of justifying Wilkins’s appearance in jail-issued clothing




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and disagreeing with the majority’s view that the circuit court had afforded Wilkins a reasonable

opportunity to obtain non-jail-issued clothing. Id. at 724-33, 771 S.E.2d at 710-16.

         Wilkins appealed to this Court. We granted his appeal on the following assignment of

error:

                The trial court erred by allowing the jury [trial] to proceed when
                the defendant was wearing his jail uniform.

                                              II. Analysis

                                        A. Standard of Review

         Under well-settled principles of appellate review, we consider the evidence presented at

trial in the light most favorable to the Commonwealth, the prevailing party below. Baldwin v.

Commonwealth, 274 Va. 276, 278, 645 S.E.2d 433, 433 (2007); Robinson v. Commonwealth,

273 Va. 26, 30, 639 S.E.2d 217, 219 (2007). We also accord the Commonwealth the benefit of

all inferences fairly deducible from the evidence. Riner v. Commonwealth, 268 Va. 296, 303,

601 S.E.2d 555, 558 (2004). Constitutional questions are questions of law, which the Court

reviews de novo. Shivaee v. Commonwealth, 270 Va. 112, 119, 613 S.E.2d 570, 574 (2005).

But the factual findings of the circuit court are not to be disturbed unless they are plainly wrong

or are without evidence to support them. Commonwealth v. Davis, 777 S.E.2d 555, 558 (2015).

                                     B. Jail attire in jury trials

         In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme Court of the United States held

that states “cannot, consistent[] with the Fourteenth Amendment, compel an accused to stand

trial before a jury while dressed in identifiable prison clothes.” Id. at 512. Applying Estelle, we

have said that “being compelled to appear before a jury in clearly identifiable jail or prison

clothes may undermine the fairness of the fact-finding process and, thus, violate the accused’s

fundamental right to a presumption of innocence while furthering no essential state interest.”



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Jackson v. Washington, 270 Va. 269, 276, 619 S.E.2d 92, 95 (2005). “Because the particular

evil proscribed is compulsion, a defendant must properly object to being compelled to appear

before the jury in prison clothes.” Id. (internal quotation marks and citations omitted).

However, if a defendant wears jail attire before the jury because of a knowingly made tactical

decision or because the defendant is otherwise “frustrat[ing] the process of justice by his own

acts,” then there is no state compulsion and no deprivation of rights. Id. at 505 n.2, 507-08.

       This case presents a very narrow question for resolution: whether Wilkins’s attire was

“readily identifiable” as jail-issued clothing. To answer that question, we first must determine

which party has the burden of proof. In other words, does Wilkins have to prove that the

clothing he wore at trial was readily identifiable as jail attire? Or, does the Commonwealth have

to prove that it was not?

       We hold that the defendant bears the burden of proving that the clothing he or she wore at

trial was readily identifiable to the jury as jail attire. We find support for this in the language of

Estelle itself: even the narrow language of the holding emphasizes that the constitutional

violation occurs only when the defendant is “dressed in identifiable prison clothes.” Id. at 512

(emphasis added). This approach also finds support in how Estelle has been applied in the

federal courts and in our sister states. See, e.g., United States v. Henry, 47 F.3d 17, 22 (2d Cir.

1995) (deferring to the lower court’s finding “that a jury would not readily identify [the

defendant’s jail-issued] denim as prison issue”); United States v. Martin, 964 F.2d 714, 720 (7th

Cir. 1992) (ruling for the government because “the defendant is unable to demonstrate that the

plain/unmarked jumpsuit that he wore during the two days of trial was clearly identifiable as

prison clothing”); United States v. Rogers, 769 F.2d 1418, 1422 (9th Cir. 1985) (“A person

seeking reversal of his conviction because he was compelled to stand trial in prison garments




                                                   5
must demonstrate from the trial record that a juror would recognize the clothing as having been

issued by prison authorities.”); Shackelford v. State, 498 N.E.2d 382, 384 (Ind. 1986) (“[T]he

defendant must show he was compelled to wear jail attire and that it was readily identifiable as

such.” (citing Estelle, 425 U.S. at 512) (emphasis in original)).

       A defendant must meet this burden with evidence of his or her appearance in court. 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. See, e.g., Estelle, 425 U.S. at 502 (the

defendant’s clothes “were distinctly marked as prison issue”). Clothing marked with serial

numbers or other indicia of incarceration would also weigh in favor of a defendant satisfying his

or her burden. See Randle v. State, 826 S.W.2d 943, 946 (Tex. Crim. App. 1992) (ruling that an

Estelle violation occurs when a defendant, against his will, is “placed before the jury while

wearing clothing which bears the indicia of incarceration”); see also Scott v. State, 80 S.W.3d

306, 306-08 (Tex. Crim. App. 2002) (reciting the defense counsel’s detailed description of the

defendant’s clothing at trial as “orange overalls marked ‘P-5, P-6, No. 27, No. 25,’” and citing

Randle). Even unmarked clothing could be readily identifiable as jail-issued clothing, such as

the orange jumpsuits or striped outfits widely associated with prison attire. See Smith v. United

States, 182 F.3d 1023, 1025 (8th Cir. 1999) (determining that it was “virtually certain that jury

members would identify the orange outfit worn by [the defendant] as prison garb,” despite the

clothing not being marked with “numbers, letters, or other markings”).

       In this case, the evidence in the record is inadequate for Wilkins to meet his burden of

proving that the clothing he wore at trial was readily identifiable as jail attire. The entirety of the

description in the record is as follows:

               He’s wearing Portsmouth City Jail clothes. They are kind of like a
               green, sort of scrub outfit. He is wearing black sneakers that I



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               think they have the inmates wear. He’s got a visible bracelet on
               his left arm.

There is no indication that Wilkins’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 Wilkins’s attire specifically or the uniform given to

Portsmouth City Jail inmates generally. Because we determine that Wilkins 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 Wilkins was compelled to wear said clothing.

Likewise, we do not need to address whether Wilkins’s failure to obtain non-jail clothing was a

result of his own actions in bad faith.

                                          III. Conclusion

       For the reasons stated, we will affirm the judgment of the Court of Appeals, affirming the

judgment of the circuit court.

                                                                                            Affirmed.




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