IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ROBERT LEE HENDERSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D16-0917
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed March 10, 2017.
An appeal from the Circuit Court for Okaloosa County.
William F. Stone, Judge.
Andy Thomas, Public Defender, and David A. Davis, Assistant Public Defender,
Tallahassee; Bruce Miller, Public Defender, and Katherine R. Jaquet, Assistant
Public Defender, Shalimar, for Appellant.
Pamela Jo Bondi, Attorney General, and Virginia Harris, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
AFFIRMED.
WETHERELL and KELSEY, JJ., CONCUR; MAKAR, J., CONCURS WITH
OPINION.
MAKAR, J., concurring.
On trial for armed robbery, Robert Lee Henderson chose—against the
repeated advice of his attorney and despite an extensive inquiry, abundant
admonitions, and cautious cajoling from the trial judge—to wear his prison
uniform rather than civilian clothes. For inexplicable reasons, Henderson wanted to
wear the black jacket, white polo, and cargo shorts he wore when he was arrested,
but they were not readily available, likely wrinkled and moldy from sitting in the
property room for a year, and inappropriate as trial attire; he chose his prison
jumpsuit instead, rejecting the freshly-laundered courtroom-appropriate clothing
his lawyer provided.
In what his appellate counsel calls “an unusual, perhaps surreal, issue,”
Henderson argues it was error for the trial judge to require that he also be shackled
during trial, a restraint to which he did not agree. On the first day of trial, prior to
jury selection, the extensive discussion among the trial judge, defense counsel, and
the prosecutor was initially only about whether Henderson could decide—against
his interests—to wear his orange jumpsuit at trial. Once that issue was resolved in
Henderson’s favor, the issue of shackling was raised for the first time, defense
counsel asking that the “shackles be removed” (to reduce the additional negative
impact on the jury of Henderson’s choice of prison clothing) and questioning the
need for them (“I really don’t understand how he would need to be shackled”). The
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trial court, however, viewed the uniform and shackles as a “package deal” that
couldn’t be split apart. Much like “shower shoes,” shackles were merely an
accoutrement of prison garb that would make no difference to the jurors, who
would “figure it out pretty quickly” that Henderson was currently incarcerated.
But shackles are qualitatively different than an orange jumpsuit or standard
issue PVC prison shower sandals; the former is an inherently prejudicial physical
restraint that implies dangerousness that might easily bias a jury. For this reason,
courts have required a necessity justification if a defendant is compelled to wear a
physical restraint, which was not established in this case. See Bello v. State, 547
So. 2d 914, 918 (Fla. 1989) (“Shackling is an ‘inherently prejudicial practice,’
Holbrook v. Flynn, 475 U.S. 560, 568, 106 S.Ct. 1340, 1345, 89 L.Ed.2d 525
(1986), and must not be done absent at least some showing of necessity.”).
Henderson did not request or agree to wear shackles; he asked only to wear his
prison garb, which can be a legitimate trial strategy. See, e.g., Estelle v. Williams,
425 U.S. 501, 508 (1976) (“[I]t is not an uncommon defense tactic to produce the
defendant in jail clothes in the hope of eliciting sympathy from the jury.”);
Demurjian v. State, 727 So. 2d 324, 327 (Fla. 4th DCA 1999) (“Counsel testified
that it was his tactic to have the jury notice that appellant was wearing prison garb
to evoke sympathy.”). Henderson’s trial counsel argued that the shackles would
make a bad situation worse, but did not specifically ask the trial judge to make
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findings on necessity, which are an obvious safeguard of a fair trial under the
Constitution whether requested or not. Miller v. State, 852 So. 2d 904, 906–07
(Fla. 4th DCA 2003) (“[I]t seems to me that a prudent judge should initiate the
inquiry into a defendant's restraints or shackles at trial, even where there is no
objection. This would remove the issue from the post conviction relief arena,
where a separate hearing will almost always be required on the issue.”) (Gross, J.,
concurring).
All this said, though the trial court should have made a finding on the
necessity of forcing Henderson to wear shackles, it cannot be concluded that this
error was other than harmless on the unique and slender record in this case. See
Carlisle v. State, 105 So. 3d 625, 627 (Fla. 5th DCA 2013) (“While the trial court
erred in requiring Mr. Carlisle to be shackled in the jury's presence, the error was
harmless.”). The record fails to reflect whether or to what extent the jury could see
the shackles, a very important factor. See id. (noting that the trial court “took
action to limit the jury’s awareness of the shackles”). And it is irresolvable on the
record presented what marginal prejudicial impact the shackles may have had on a
jury that, by Henderson’s own choice, saw him in prison garb; the predictable
prejudicial impact of Henderson’s voluntary and informed decision to dress as a
prisoner may have been enough for the jury to see him in a different light, the
additional prejudice of the shackles notwithstanding.
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The trial judge, in an attempt to lessen the prejudicial effects of Henderson’s
sartorial choice, told the jury:
Mr. Henderson has made an affirmative decision to be tried in this
case while wearing clothing issued by the Okaloosa County Jail. This
fact must not and cannot be taken into consideration by you during
your deliberations, since what a person wears during trial does not
constitute evidence of any kind. Furthermore, you must not and
cannot make any inferences towards Mr. Henderson’s guilt or
innocence based upon the clothing he has chosen to wear during this
trial. If Mr. Henderson’s clothing has any affect [sic] on your
deliberations or verdict, it will be an invalid verdict.
The intent of this jury instruction is laudable; the trial judge was trying to constrain
Henderson’s self-inflicted harm. Because it mentions only “clothing,” it may have
highlighted to some jurors that Henderson’s choice extended to only his jumpsuit
and not the shackles, thereby inferentially suggesting they were necessary for
courtroom security purposes. But again, the record gives us nothing upon which to
rely in assessing the matter. And the trial judge’s questioning of the jury post-
verdict (asking whether Henderson’s “appearance in jail clothing influence[d] your
verdict in any way?”) confirmed that all jurors believed they had made an
independent judgment based only on the evidence at trial. For these reasons, and
the sufficient evidence to support the jury’s verdict, the trial judge’s failure to
establish the necessity of the shackles did not result in a miscarriage of justice.
§ 59.041, Fla. Stat. (2017).
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