Order                                                                           Michigan Supreme Court
                                                                                      Lansing, Michigan

  December 13, 2013                                                                     Robert P. Young, Jr.,
                                                                                                   Chief Justice

                                                                                         Michael F. Cavanagh
                                                                                         Stephen J. Markman
  147166                                                                                     Mary Beth Kelly
                                                                                              Brian K. Zahra
                                                                                      Bridget M. McCormack
                                                                                            David F. Viviano,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                      Justices
            Plaintiff-Appellee,
  v                                                          SC: 147166
                                                             COA: 305758
                                                             Wayne CC: 11-002505-FC
  JOSEPH ALAN BIGELOW,
            Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the April 4, 2013
  judgment of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the questions presented should be reviewed by this Court. Even if the trial
  court erred by denying the defendant’s request to change into civilian clothes on the first
  day of trial, we conclude that this error was harmless beyond a reasonable doubt.

         VIVIANO, J. (concurring).

         I agree with the Court’s decision to deny leave to appeal. I write separately to
  state that in my view, the trial court committed error, albeit harmless, by denying
  defendant’s request to change into civilian clothing.

          Before defendant’s court appearance, defendant’s mother brought civilian clothing
  to the jail for inspection. Jail officials refused to accept the clothing, saying that it had to
  be brought to court for defendant’s trial. Defense counsel then brought the clothes to
  court, objected to defendant appearing before the jury in jail attire, and asked that
  defendant be allowed to change prior to appearing before the jury. The trial court denied
  the request, noting that “any jail markings have been turned inside out,” and then
  commenced the trial. Defendant appeared before the jury for the first day of trial wearing
  “jail green” trousers turned inside out, jail-issue sandals, and a white T-shirt.

        This Court has stated before that “[n]othing could more surely destroy the
  presumption of innocence and . . . the impartiality of the jury, than to force the defendant
                                                                                                                2

to be tried in prison clothes.” People v Shaw, 381 Mich 467, 480 (1969). This is because
“the constant reminder of the accused’s condition implicit in such distinctive, identifiable
attire may affect a juror’s judgment.” Estelle v Williams, 425 US 501, 504-505; 96 S Ct
1691; 48 L Ed 2d 126 (1976). Accordingly, “a court has no discretion as to a criminal
defendant’s attire” under normal circumstances. Shaw, 381 Mich at 474. Rather, a
“defendant’s timely request to wear civilian clothing must be granted.” People v Harris,
201 Mich App 147, 151 (1993) (emphasis added). However, the Court of Appeals has
held that a trial court may deny the defendant’s request if it finds that the inmate’s attire
does “not look like prison clothing.” Id. at 152; accord People v Woods, 32 Mich App
358, 359 (1971) (noting that defendant’s request was untimely and that the trial court
found that his prison attire resembled “work clothes”).

        It appears that defendant made a timely request to change into civilian clothes,
which the trial court denied. Although the court noted that all jail markings had been
hidden from view, it did not make a finding that defendant’s clothing resembled ordinary
civilian attire and was not recognizable as jail attire. Absent such a finding, I believe that
the trial court erred by denying defendant’s request to change into civilian clothes. As
noted, requiring a defendant to appear before the jury in jail attire undermines the
presumption of innocence and the impartiality of the jury. See Shaw, 381 Mich at 480.
Therefore, although the strong evidence introduced at trial rendered the error harmless
beyond a reasonable doubt, I still believe this Court should state unequivocally that the
trial court committed constitutional error by denying defendant’s request.

       MCCORMACK, J., joins the statement of VIVIANO, J.

       CAVANAGH, J., would grant leave to appeal.




                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 13, 2013
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                                                                              Clerk
