United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
March 29, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-20307
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RUSSELL RAY PRYOR,
Defendant-Appellant.
Appeals from the United States District Court for the
Southern District of Texas, Houston Division
Before REAVLEY, DeMOSS, and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
Russell Ray Pryor challenges his drug convictions, arguing
that he was deprived of his right to a fair trial because he was
tried wearing jail garb — a green jumpsuit — and was deprived of
his Sixth Amendment confrontation right when two witnesses repeated
a hearsay accusation that Pryor was a drug dealer. We AFFIRM.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On March 2, 2004, police officers responded to a call at an
Extended Stay Motel in Houston. Officers Gonzalez and Boutte met
with Pryor and Pryor’s girlfriend, Tennille Nicole Whirl, in the
motel’s parking lot. The officers first spoke with Whirl, and she
told them that Pryor was a drug dealer. Gonzalez then spoke to
Pryor and patted him down for safety reasons, discovering $4900
cash in Pryor’s left front pocket. The officers placed Pryor under
arrest for the assault of Whirl.
Pryor consented to a search of his vehicle and hotel room, but
officers did not find any narcotics. The officers asked Pryor if
he had any drugs in his apartment, and he responded that he had
pills and marijuana. Pryor, riding in the patrol car, directed the
officers to the apartment a few miles from the motel. He signed a
consent-to-search form, and directed them to his apartment, unit
1511. The police obtained the key to the apartment from Pryor’s
pocket. Officers testified that Pryor referred to the apartment as
“my apartment.”
Pryor told the officers that there was no one in the
apartment, but that there were guns inside. Once inside, Pryor
indicated the location of the guns inside a closet. Officers
recovered a shoebox containing pills and two loaded guns. In
total, the search of the apartment yielded 664 hydrocodone pills,
three full bottles of codeine syrup, and a small amount of
marijuana. Upon the discovery of the codeine syrup, officers
testified that Pryor stated, “You got everything.” Additionally,
officers found over 30 empty codeine bottles, as well as Karo syrup
and Big Red soda, which is used to dilute codeine for distribution
purposes. While at the apartment, Pryor asked for permission to
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change his shoes, described a specific pair of red and white Nikes,
and told officers where to find the shoes in the closet. The
officers brought the shoes to Pryor and he confirmed that they were
the right ones.
At trial, Pryor’s defense was that it was not his apartment.
Pryor claimed that he subletted the apartment to his cousin, Ralph
Holmes. Holmes and Pryor both testified that Holmes, not Pryor,
lived in the apartment. Pryor argued that the police officers were
lying, as was the apartment manager who testified that she saw
Pryor retrieving his mail at the complex on a weekly basis, but had
never seen Holmes. The jury found Pryor guilty, the court
sentenced him to a term of 360 months imprisonment, and he now
appeals.
II. DISCUSSION
Pryor argues that he (1) was deprived of his right to a fair
trial because he was forced to wear jail garb during the trial, and
(2) was deprived of his Sixth Amendment confrontation right when
two witnesses repeated a hearsay accusation that Pryor was a drug
dealer. We consider each claim in turn.
A. The trial court did not deprive appellant of his right to
a fair trial and presumption of innocence.
“The presumption of innocence, although not articulated in the
Constitution, is a basic component of our system of criminal
justice.” United States v. Dawson, 563 F.2d 149, 151 (5th Cir.
1977) (citations omitted). A government entity violates that
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presumption of innocence when it “compels an accused to stand trial
before a jury while dressed in identifiable prison garb.” United
States v. Birdsell, 775 F.2d 645, 652 (5th Cir. 1985). “If, for
whatever reason, the defendant fails to object to his attire, the
presence of compulsion necessary to establish a constitutional
violation is negated.” Id. (citations omitted)
At the outset of the trial, defense counsel alerted the court
of Pryor’s lack of non-jail clothing to wear, and asked whether the
marshals had such clothing available. A marshal said he didn’t
know whether they had such clothing, but would check. The court
asked the marshal to do so, and instructed defense counsel to see
that the family bring clothing for future sessions. Pryor wore his
jail garb for the entire two-day trial, but there was no further
discussion of the matter on the record. When the marshal
presumably returned without clothes and the trial resumed, defense
counsel had the opportunity to object to continuing in jail garb,
but made no such objection. Because there was no objection, the
requisite element of compulsion did not exist and no violation
occurred. Birdsell, 775 F.2d at 652. Thus, Pryor has failed to
show he was denied his right to a fair trial.
B. Any violation of appellant’s confrontation right was
harmless error.
Pryor next claims that the Confrontation Clause was violated
when the district court admitted an out-of-court statement made by
a witness who did not testify at trial — specifically, his
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girlfriend’s statement to police that he was a drug dealer.
“Confrontation Clause objections that were properly raised at trial
are reviewed de novo, subject to harmless error analysis.” United
States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006) (quoting
United States v. Bell, 367 F.3d 452, 465 (5th Cir. 2004)).
At one point, the government asked an officer what he did
based on the information he learned from Whirl. The officer
answered, “I learned that he was a dope dealer.” The court
sustained the defense objection that the answer was not responsive
and instructed the jury to disregard the statement. The government
later asked another officer why he searched Pryor’s vehicle, and
defense counsel again objected on the basis that the answer would
violate the defendant’s Confrontation right. The court overruled
the objection on grounds that the statement was not being offered
for the truth of the matter asserted, and allowed the officer’s
answer for the limited purpose of showing why the officer searched
the vehicle. The officer repeated Whirl’s statement that Pryor was
a drug dealer.
The Confrontation Clause prohibits the admission of an out-of-
court testimonial statement unless the witness is unavailable and
the defendant had a prior opportunity to cross-examine the witness.
Crawford v. Washington, 541 U.S. 36, 59 (2004). This prohibition
is “irrespective of whether the statement falls within a firmly
rooted hearsay exception or bears particularized guarantees of
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trustworthiness.” United States v. Holmes, 406 F.3d 337, 348 (5th
Cir. 2005). Testimonial statements may be admitted, however, so
long as they are not being used to prove the truth of the matter
asserted. Id. at 349; Crawford, 541 U.S. at 59 n.9 (“The
[Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the
matter asserted.”) (citation omitted).
Pryor plausibly argues that the statement was testimonial and,
despite court statements to the contrary, was admitted for the
truth asserted. We need not wade into those waters because, even
assuming a Confrontation Clause violation occurred, the error was
harmless. To determine whether the Confrontation Clause error was
harmless, “[t]he correct inquiry is whether, assuming that the
damaging potential of the cross-examination were fully realized, a
reviewing court might nonetheless say that the error was harmless
beyond a reasonable doubt.” Delaware v. Van Arsdall, 475 U.S. 673,
684 (1986).
The government’s evidence against Pryor was substantial and
Pryor’s only defense was that the apartment in question was not
his. This claim is in no way undercut by the allegedly wrongfully
admitted statement. Further, it was supported only by his own
testimony and that of his cousin, while the officers testified that
Pryor claimed it was his apartment, provided the key to it, led the
officers to it, knew where the guns were located inside, knew which
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drugs were in the apartment, and told officers, upon finding the
last bottles of codeine syrup, that they’d found everything.
Further, Pryor was able to direct the officers to the closet and
describe a specific pair of shoes that he wanted to wear. The
clothing in the closet appeared to fit Pryor. Officers also found
Pryor’s personal mail inside the apartment. Finally, the apartment
manager testified that she saw Pryor once a week collecting his
mail, and that he’d answered the door on at least one occasion.
Pryor argued at trial that the witnesses against him,
including the officers and apartment manager, were lying. To the
extent that the trial boiled down to a swearing match between Pryor
and the government’s witnesses, the testimonial statement could
have conceivably tarnished Pryor’s credibility as a witness in the
eyes of the jury. Nevertheless, given the extent of the evidence
against Pryor, the admission of Whirl’s testimonial statement
represented a small part of what was an otherwise overwhelming
accumulation of evidence. Therefore, the admission of that
statement, despite any possible Confrontation Clause violation, was
harmless.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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