                        COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Annunziata and Bumgardner
Argued at Norfolk, Virginia


COROM MORRISETT
                                           MEMORANDUM OPINION * BY
v.   Record No. 1296-98-1                 JUDGE SAM W. COLEMAN III
                                                 MAY 18, 1999
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                      Johnny E. Morrison, Judge

            Dianne G. Ringer, Senior Assistant Public
            Defender, for appellant.

            Kathleen B. Martin, Assistant Attorney
            General (Mark L. Earley, Attorney General,
            on brief), for appellee.


     Corom Morrisett was convicted in a jury trial of two counts

of robbery and two counts of use of a firearm in the commission

of a robbery.     On appeal, Morrisett contends the trial court

erred by compelling him to appear before the jury in a jail

uniform.    Additionally, Morrisett contends that the evidence is

insufficient to support the jury’s verdicts.    We find that the

trial court did not abuse its discretion, or violate Morrisett’s

constitutional rights, by proceeding with the trial.

Additionally, we find that the evidence was sufficient to

support the convictions.




    *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
                             BACKGROUND

     When considering the sufficiency of the evidence on appeal,

we view the evidence in the light most favorable to the

Commonwealth and grant to it all reasonable inferences fairly

deducible therefrom.    See Higginbotham v. Commonwealth, 216 Va.

349, 352, 218 S.E.2d 534, 537 (1975).

     Morrisett and another individual entered a gas station

convenience store as the cashiers prepared to change shifts.

Morrisett, the taller of the two, wore a red hat with the flaps

down and stated, “this is a hold-up.”     The shorter man

brandished a handgun.   The two cashiers emptied their respective

cash register drawers giving the contents to Morrisett and his

accomplice who, thereafter, fled from the store.

     Neither cashier could identify the defendant from a photo

lineup, but both identified Morrisett at trial, and both

identified a red hat officers found in Morrisett’s bedroom as

the hat that Morrisett wore during the robbery.

     While in custody, Morrisett viewed a surveillance tape from

the store’s security camera.   While watching the tape, without

any provocation, the defendant pointed to the taller man with

the hat and said, “that’s me.”    At trial Morrisett denied making

the statement, and denied owning the red hat.    Additionally,

Morrisett testified that he was in Baltimore when the crime

occurred.   His mother corroborated the alibi.



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     Before the trial date, Morrisett discussed with his

attorney the merits of requesting a jury trial or bench trial.

Morrisett “wavered” between requesting a jury or a bench trial

but on the day before trial he told his attorney he wanted to be

tried by the court, and the case was set for a bench trial.

About fifteen minutes before the judge called the case,

Morrisett informed his attorney that he wanted a jury trial.

Despite the late notice, the trial judge was able to accommodate

Morrisett’s request because a jury was available.

     However, when the trial judge asked if the defense was

ready to proceed, counsel for Morrisett responded:

               Judge the defense is not ready on this
          case. Mr. Morrisett just informed me . . .
          he wanted a jury trial. Seeing that that
          was the case, Judge, you can see that he is
          in a jail uniform, Portsmouth City Jail
          uniform.

               If we’re going to have a jury case, I
          think it would be prejudicial for the client
          to be sitting at the defense table in jail
          clothes.

               I did talk with my investigator to have
          him . . . check to see whether we had any
          clothes that would fit Mr. Morrisett. . . .
          He indicated to me that we didn’t have any
          . . . .

               Based on that, judge, we’re not ready.

     Morrisett indicated that he was otherwise ready to proceed,

and the judge determined to proceed with the case.




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                              ANALYSIS

     The conduct of a trial is left to the discretion of the

judge, however, “it is incumbent upon the trial court to

exercise that discretion with extreme caution to avoid

infringing upon the rights of the accused to a fair and

impartial trial.”   Miller v. Commonwealth, 7 Va. App. 367, 371,

373 S.E.2d 721, 723 (1988).

               “Every procedure which would offer a
          possible temptation to the average man . . .
          to forget the burden of proof required to
          convict the defendant, or which might lead
          him not to hold the balance nice, clear and
          true between the State and the accused,
          denies the latter due process of law.”

Estes v. Texas, 381 U.S. 532, 543 (1965) (quoting Tumey v. Ohio,

273 U.S. 510, 532 (1927)).

     One of the “axiomatic and elementary” requirements of a

fair trial is the presumption of innocence which “lies at the

foundation of the administration of our criminal law.”      Coffin

v. United States, 156 U.S. 432, 453 (1895); see Estelle v.

Williams, 425 U.S. 501, 503-04 (1976).    As part of this

presumption, defendants at trial are “entitled to be clothed

with indicia of innocence” until such time as guilt is

determined by the judge or jury.    See Vescuso v. Commonwealth,

4 Va. App. 32, 40, 354 S.E.2d 68, 72 (citing Harrell v. Israel,

672 F.2d 632, 635 (7th Cir. 1982)), aff’d en banc, 5 Va. App.

59, 360 S.E.2d 547 (1987).    Moreover, the accused is entitled to

have his or her “‘guilt or innocence determined solely on the

                                - 4 -
basis of the evidence introduced at trial, and not on grounds of

official suspicion, indictment, continued custody, or other

circumstances not adduced as proof at trial.’”     See id. (quoting

Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).

     The United States Supreme Court, in Williams, stated that a

trial court violates a defendant’s due process right to the

presumption of innocence when the trial court compels the

accused to wear prison clothes before a jury during trial.       See

Williams, 425 U.S. at 503-06; see also Holbrook v. Flynn, 475

U.S. 560, 568 (1986) (discussing Williams); United States v.

Hurtado, 47 F.3d 577, 580-82 (2nd Cir. 1995) (applying

Williams).   Unlike the necessity to apply shackles or physical

restraints to an unruly defendant, compelling a defendant to

appear in jail clothing “furthers no essential state policy.”

Williams, 425 U.S. at 504.   “That it may be more convenient for

jail administrators, a factor quite unlike the substantial need

to impose physical restraints upon contumacious defendants,

provides no justification for the practice.”     Id. (footnote

omitted).

     We find that by proceeding with the trial over Morrisett’s

objection, the trial court neither compelled Morrisett to stand

trial in prison garb, nor abused its discretion.

     Morrisett, who had earlier agreed to a bench trial, decided

to request a jury trial approximately fifteen minutes before his

trial was to begin.   When the court accommodated that last

                               - 5 -
minute request, Morrisett then told the court that he was not

prepared for trial because he wore prison garb.   His counsel

stated, “The defense is not ready in this case,” and proceeded

to explain why.   Morrisett made no motion for relief, other than

to state that under the circumstances, the defense was not

prepared to begin.   The defendant made no motion for a recess or

brief delay to obtain non-prison garb and did not propose any

course of action to obtain non-prison garb.   As the trial court

noted, Morrisett’s mother was present at the trial and possibly

could have obtained clothes for Morrisett, but he made no

request or motion to be allowed to do so.

     The record suggests that Morrisett was attempting to delay

trial.   He requested a jury trial at the last moment.   When that

request failed to delay the trial, he stated he was unprepared

for trial due to the prison garb.   When the court refused to

continue the trial, Morrisett stated that he was dissatisfied

with his lawyer due to a conflict of interest.

     Under these circumstances, where the defendant informed the

court that he was not prepared to proceed but did not move the

court to accommodate any course of action to obtain non-prison

garb, or for any other relief, the trial court did not err in

proceeding to trial as scheduled.   No motion having been made

requiring a trial court ruling, the court did not “compel”

Morrisett to wear prison garb at trial.



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     Additionally, we find the evidence was sufficient to

support the convictions.   Viewed in the light most favorable to

the Commonwealth, the evidence proved that Morrisett confessed

to being the taller individual in the videotape of the robbery.

That confession, the two positive identifications at trial, the

admission of the videotape and the admission of the identified

red hat into evidence, entitled the jury to convict Morrisett.

     Accordingly, we affirm the convictions.

                                                         Affirmed.




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