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

GEORGE THOMPSON,                       NOT FINAL UNTIL TIME EXPIRES TO
                                       FILE MOTION FOR REHEARING AND
      Appellant,                       DISPOSITION THEREOF IF FILED

v.                                     CASE NO. 1D14-5770
                                       CORRECTED PAGES: pg 1
STATE OF FLORIDA,                      CORRECTION IS UNDERLINED IN RED
                                       MAILED: June 8, 2016
                                       BY: NMS
      Appellee.


_____________________________/

Opinion filed June 7, 2016.

An appeal from the Circuit Court for Leon County.
Ronald W. Flury, Judge.

Nancy A. Daniels, Public Defender, Kathleen Stover and Steven L. Seliger,
Assistant Public Defenders, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.


MAKAR, J.

      Appellant George Thompson was charged with aggravated stalking after court

order. He was convicted after a jury trial in which two heavily-edited videos were

shown of his first appearances in criminal court in jail garb in front of a judge who

instructed him to have no contact with the victim. Despite the judicial admonition,

Thompson made repeated phone calls to her (fifty-one from jail in one day alone)
and continued his stalking of the victim while incarcerated and upon release. The

trial judge in this case ruled that the probative value of the videos (showing that

Thompson was explicitly instructed to have no contact) outweighed their prejudice

(showing Thompson in jail garb), which Thompson claims was error and deprived

him of a fair trial.

       As a general matter, Thompson is correct that showing him in jail clothing

during his criminal jury trial undermines the presumption of innocence to which he

is entitled. Estelle v. Williams, 425 U.S. 501, 504 (1976) (noting that “[c]ourts have,

with few exceptions, determined that an accused should not be compelled to go to

trial in prison or jail clothing because of the possible impairment of the presumption

that is so basic to the adversary system”) (footnote omitted); see also Hayes v. State,

140 So. 3d 1106, 1108 (Fla. 1st DCA 2014) (“[I]t is error for the trial court to compel

a defense witness to appear in jail or prison clothing if the defendant objects.”). Here,

he was not required to wear jail clothing during the trial, he committed a portion of

the charged crime while in jail (the repeated jailhouse phone calls), and the videos

were edited to include only the limited portions where he was told (and said he

understood) that he was to have no contact with the victim. But playing the video

and accompanying audio allowed the prosecutor to use the visual and aural

imprimatur of the first appearance judge as a quasi-witness against Thompson,

which is prejudicial. The potential for error could have been reduced by simply

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allowing the jury to review a stipulation or transcription of what the first appearance

judge told Thompson (that might have allowed Thompson to claim he didn’t

understand the judge, but the clarity of what is said rebuts that). Indeed, the trial

judge inquired about playing only the audio portion of the videos, but was told that

was not possible; why the video screen could not be turned off or covered is

unexplained in the record. We are left with the case as we find it.

      As mentioned forty years ago, “the courts have refused to embrace a

mechanical rule vitiating any conviction, regardless of the circumstances, where the

accused appeared before the jury in prison garb.” Estelle, 425 U.S. at 507. Moreover,

the “harmless-error doctrine is applicable to this line of cases.” Id. at 506. To the

extent an error occurred here, it was harmless beyond a reasonable doubt. Yes, the

videos were important evidence that resulted in an aggravated stalking conviction

(versus a lesser stalking charge), but other substantial evidence established guilt on

the more severe charge. And the jury already knew that Thompson was in jail when

he made harassing calls and was put on notice by the first appearance judge, thereby

attenuating the impact the videos would have had. U.S. ex rel. Stahl v. Henderson,

472 F.2d 556, 557 (5th Cir. 1973) (“No prejudice can result from seeing that which

is already known.”). Under these circumstances, affirmance is warranted.

      AFFIRMED.

ROBERTS, C.J., and OSTERHAUS, J., CONCUR.

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