DUI Laws - Making Prisoner Wear Jail Attire Illegal During Trial

Some of us have clients who remain in custody while they are being tried. When that happens, keep in mind that it is unconstitutional to force a man (or woman) to trial while attired in prison garb. In Leslie Smith v. Commonwealth of Kentucky, Not Reported in S.W.3d, 2011 WL 4407486 (Ky.App.), the defendant was brought to trial for first-degree promoting contraband for allegedly possessing marijuana while confined in the Green River Correctional Complex, and one count of being a first-degree persistent felony offender. A bifurcated jury trial was conducted on November 17, 2009. During the entirety of the jury trial, Smith wore prison-issued khaki pants and a khaki shirt. The khaki shirt included a white label, sewn on the left side of the shirt, which contained Smith's name and inmate number. At the conclusion of the trial's first phase, the jury found Smith guilty of one count of first-degree promoting contraband.


In Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the United States Supreme Court recognized the inherent prejudice suffered by a defendant who is forced to appear before a jury in distinctive prison garments. The Court held that it is reversible error if, over a defense objection, the defendant is compelled to appear in jail clothing before a jury. Estelle, 425 U.S. at 512–13. Kentucky has likewise acknowledged that requiring a defendant to appear in front of a jury in identifiable jail attire constitutes reversible error provided the defendant properly objects. Scrivener v. Commonwealth, 539 S.W.2d 291, 292 (1976). Estelle and Scrivener clearly hold, however, that a defendant's failure to object “to being tried in prison attire, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.” Estelle, 425 U.S. at 512–13; Scrivener, 539 S.W.2d at 292.

On appeal, the court stated as follows:

"In the case sub judice, the record is clear that Smith did not object to wearing prison-issued clothing either before or during the trial. Thus, Smith's claim of error does not even rise to the level of reversible error, much less palpable error. Additionally, Smith committed the offense for which he was being tried while he was incarcerated. During the first five minutes of voir dire, the Commonwealth advised the jury that this case was about Smith possessing marijuana while confined in prison. Consequently, the jury knew from the trial's commencement that Smith was currently, or at least had recently been, incarcerated. Further, while testifying in his defense, Smith admitted he was a convicted felon currently confined in the Green River Correctional Complex. “No prejudice can result from seeing that which is already known.” Estelle, 425 U.S. at 507 (quoting United States ex rel. Stahl v. Henderson, 472 F.2d 556, 557 (5th Cir.1973)). Therefore, we are unable to conclude that there is a substantial probability that the result would have been different if Smith did not appear before the jury in prison attire. Hibdon v. Hibdon, 247 S.W.3d 915, 918 (Ky.App.2007). Nor can we conclude that Smith's appearance before the jury in prison-issued clothing so seriously affected the fairness or integrity of Smith's trial as to be “shocking or jurisprudentially intolerable” thereby warranting reversal.

A second additional issue was raised on appeal. During sentencing, the state introduced evidence of priors where the charges had been dismissed or the convictions set aside:

"[I]n Robinson v. Commonwealth, 926 S.W.2d 853, 854 (Ky.1996), our Supreme Court recognized that while KRS 532.055(2)(a) authorizes the Commonwealth to introduce the defendant's prior convictions, it may not introduce prior charges that were ultimately dismissed. “Thus, it is well settled that the Commonwealth cannot introduce evidence of charges that have been dismissed or set aside.” Cook v. Commonwealth, 129 S.W.3d 351, 364 (Ky.2004); see also Cuzick, 276 S.W.3d at 264 (recognizing that a charging document may not be admissible during the penalty phase because it may contain “information inconsistent with the final judgment”).
Even though it was error, the court found no substantial prejudice and affirmed the 15 year enhanced sentence.

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DUI Laws - Kentucky Reverses Drug Conviction Based On Confrontation Violation

This case comes to DAD thanks to the watchful eyes of Founding Member William "Bubba" Head from Georgia. In Whittle v. COMMONWEALTH of Kentucky, --- S.W.3d ----, 2011 WL 4431158 (Ky.), the defendant was charged with possession of marijuana, trafficking in cocaine, tampering with physical evidence, and being a first-degree persistent felony offender. Prior to trial, a juror indicated he was friends with the trooper in the case. In response to how his friendship with a state trooper would affect his participation on the jury, the juror initially stated that he believed he would remain impartial. However, when asked immediately thereafter whether there was “a possibility bias might creep in,” he agreed there was that possibility. Appellant, to no surprise, emphasizes the latter response: the juror's admission that there was a “possibility” that through his friendship with the state trooper, bias in favor of the prosecution could “creep in” to his adjudication. The trial court refused to strike the juror for cause, and on appeal that ruling was affirmed. "A juror must only be struck for cause if there is a probability he will be biased in favor of one party over the other. Pennington v. Commonwealth, 316 S.W.2d 221, 224 (Ky.1958). Appellant admits that friendship with a law enforcement official does not create inherent bias in a juror toward the prosecution. See Penman v. Commonwealth, 194 S.W.3d 237, 252–53 (Ky.2006), overruled on other grounds by Rose v. Commonwealth, 322 S.W.3d 76 (Ky.2010). As “even law enforcement personnel are not automatically excluded from the jury panel,” it would be absurd to automatically disqualify their friends. Id. at 252."

At trial, the lab analyst failed to appear, so a supervisor read the lab report into evidence. On appeal, the court found that the admission of the evidence that the powder was cocaine violated the Confrontation Clause, despite the fact that a supervisor was there to be cross-examined. In responding to a variety of State arguments attempting to distinguish the SCOTUS cases, the court stated:

"Despite the similarities between the issue presented here and that resolved by the U.S. Supreme Court in Melendez–Diaz, the Commonwealth ventures three arguments for why its authority does not mandate reversal here: It should be distinguished; should not apply retroactively; and any finding of error it mandates here is harmless. Presumably, the Commonwealth would make the same arguments as to Bullcoming.

The best-argument is that Melendez–Diaz should be distinguished from the case at hand. The Commonwealth attempts to distinguish the “certificates of analysis” entered into evidence in Melendez–Diaz because they, unlike the lab report here, were unaccompanied by live witness testimony. It claims that because Terry Comstock testified in court to the contents of this report, and Appellant was free to cross-examine him, his Confrontation Clause rights were satisfied.

This distinction would carry water if Comstock's testimony about testing was the only evidence admitted, and not the report itself. But the report was admitted into evidence. Appellant's opportunity to cross-examine Comstock does not satisfy any potential right to be confronted with the author of the report. See Crawford, 541 U.S. at 51 (noting that in type of English prosecution Confrontation Clause was designed to prevent, “Raleigh was, after all, perfectly free to confront those who read Cobham's confession in court”). Even if Appellant could hypothetically demonstrate that Comstock was ignorant about chemistry or a complete liar, he still could not confront the author of the report."

Thus, the cocaine related convictions were overturned. Because there was no attempt to confront anyone on the marijuana charge (i.e. it appears to have been admitted without a contest) that conviction was affirmed.

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