dissenting. The majority opinion is dearly wrong. thus. I dissent. The controllin2 rule is found in the case of Estelle v. Wilkins, 425 U.S. 501 (1976), where the Court held that, while the State cannot “consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.”
Here, the evidence clearly shows the trial judge did not compel Box to be tried before a jury while Box was in prison garb. In fact, it is undisputed that, before his counsel began conducting his voir dire of the jury pool and his jury trial, Box, indeed, was in civilian clothes. How then, the reader might ask, do we find ourselves dealing with the prison-garb issue? Good question.
The record reflects that the trial judge acted within his discretion when he required the parties to proceed with voir dire and the trial. On the day trial was scheduled, the State, not Box or his counsel, informed the trial judge that Box was in prison clothes. In response, defense counsel said that, one week prior to the trial date, he had instructed Box to make arrangements for obtaining civilian clothes, and Box had told his attorney that Box had private, civilian clothes in which he had been arrested. At the beginning of voir dire on the day of trial, neither Box nor his attorney gave the trial judge any excuse or reason why he was not wearing those clothes left at prison or why he did not request those clothes from prison personnel.
Also, it was only at this stage of trial that the trial judge became aware through Box’s counsel that Box had asked his parents to bring civilian clothes for the trial. When they failed to show, neither Box nor his counsel gave an excuse why Box’s parents were not present when the trial proceedings commenced; nor did Box or his attorney offer any prospects as to when (or whether, for that matter) the parents might appear. With this lack of information, the trial judge did all he could •&emdash;■ he denied any delay. Contrary to the majority opinion, the trial judge, when deciding the trial should continue, did not know a continuance would be’ “of very short duration” because no one told him when or if Box’s parents would appear. Clearly, in these circumstances, the trial judge did not abuse his discretion in requiring the parties to proceed to trial.
I also point out that, when Box’s parents did finally show up, the trial judge promptly granted Box’s request to get into his civilian clothes. Afterwards, defense counsel proceeded with his voir dire of the jury panel and later participated in selecting the jury.1 In sum, the trial judge did not compel Box to be tried in prison clothes — he permitted Box to change into civilian clothes as soon as the judge learned the clothes were available.
Box (and the majority opinion) relies on the case of Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970), where this court held it was reversible error to compel Miller to be tried before a jury when Miller was in prison clothes. There, Miller had not been afforded any opportunity to obtain civilian clothes; nonetheless, the trial judge compelled him to go to trial. Unlike in Miller, Box had plenty of time to acquire civilian clothes in a timely fashion, but failed to do so and provided no reason for having failed to do so. The majority opinion in its discussion of Miller makes reference to Ark. Const. art. 2, § 8, but the holding in Miller is not premised on the Arkansas Constitution, but instead, on common law. Neither Box nor the State argues the Arkansas Constitution in this appeal. Still, the majority plunges onward, trying to draw a distinction between Miller and Estelle when none exists. The majority asserts that the court in Holloway, Welch & Campbell v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), “noted” Estelle, but did not overrule Miller. There was no need to overrule Miller, as the rules in both cases are not inconsistent. Further, the majority mistakenly asserts our court has never adopted this rule in Estelle. See, e.g., Holloway, supra. One merely needs to read this court’s opinions in Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984), Clemmons v. State, 303 Ark. 265, 795 S.W.2d 927 (1990), and Tucker v. State, 336 Ark. 244, 9983 S.W.2d 956 (1999), to be reassured that Arkansas has adopted the Estelle rule. See also Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982), where the court of appeals first correctly recognized our court adopted the rule in Estelle. Both Miller and Estelle stand for the proposition that a trial judge cannot compel a defendant to be tried in prison garb, and both provide that a defendant can waive that right — in Miller that right was not waived, but here, Box waived his right by not timely obtaining civilian clothes when he was given ample time to do so.
Again, to summarize, Box was in civilian clothes at the time his counsel voir dired the jury panel, after the jury was selected, and when he was tried. Thus, the only issue to consider is whether Box was prejudiced by the “possibility” the jurors saw Box in prison garb during the time the State first voir dired the jury pool. Even at that early stage of the trial, the trial judge asked defense counsel if he wanted the trial judge to voir dire the jury panel to determine if the jurors, having seen Box in prison garb, would be able to still render a fair decision. Box, however, claimed that questioning the panel on this point, alone, would be prejudicial.
Of course, our law is well settled that Arkansas does not recognize plain error. This court, in fact, has held that it is not prejudicial per se when a defendant is brought into a courtroom in prison clothes, handcuffed, or even legcuffed. Lynch v. State, 315 Ark. 47, 863 S.W.2d 834 (1993). Moreover, while the Estelle court recognized the potentially prejudicial effect of a prison uniform, that Court did not rule the practice inherently prejudicial absent the element of compulsion. See Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984). The instant case is much like Young, where the defendant Young made no objection throughout the jury selection process and not until the jury was seated did he object. The Young court concluded as follows:
[Ajlthough [Young] argues that he had no other clothes available to him, he made no showing whatsoever that he was forced to wear the prison attire, that a continuance was requested or that any request for other clothes was denied or that any such request was ever made. And as pointed out in Estelle, there was no duty on the part of the trial court to make any inquiry. “Under our adversary system, once a defendant has the assistance of counsel the vast array of trial decisions, strategic and tactical, which must be made before and during trial rests with the accused and his attorney. Any other approach would rewrite the duties of the trial judges and counsel in our legal system.” Estelle at 512.
Young, 283 Ark. at 437. Here, Box never made an effort to show any prejudice ensued because some jurors might have seen him in prison garb at the initial part of the voir dire of the jury pool. Based on the record as discussed above, Box must take the responsibility for any delay in acquiring civilian clothes, but also, once jurors saw him briefly in prison garb, it was his burden to show this somehow tainted the jury later chosen to decide his case. He had the opportunity during voir dire to question potential jurors about what, if any, impact his clothing might have had on them, but he chose not to exercise this option. He rejected the trial judge’s invitation to question the jury panel on the prison-garb issue. On this point, the majority opinion alludes to the metaphor that once Box was seen in prison clothes that “the bell had been rung, and it could not be unrung.” This is an unfortunate misuse of a good figure of speech, which is often employed when a jury has heard inadmissible and prejudicial evidence. Obviously, the time to challenge a juror or jury panel is at voir dire and prior to those jurors being selected to serve on the jury selected to try a defendant’s case. This principle is so fundamental in our jurisprudence, no citation is required.
In conclusion, the record bears out that Box was properly tried in clothes of his choice and received a fair trial while wearing them. It is also clear that he made no attempt to show any juror was prejudiced against him because they may have sen him in prison garb — a situation which he, himself, had a hand in creating. I would affirm the trial judge.
Arnold, C.J., joins this dissent.During their respective voir dires, both the prosecutor and defense counsel reminded the jury of the presumption of innocence Box enjoyed prior to trial. In fact, the State specifically asked if “anybody [was] thinking, right now, because he sits here today charged with these crimes, that Mr. Box is guilty.” No juror responded, and on more pointed, individual questioning, at least three jurors specifically indicated that they had “no problem” with the presumption of Box’s innocence.