Opinion
Case No. 20010384-CA.
Filed August 29, 2002. (Not For Official Publication)
Appeal from the Fifth District, Cedar City Department, The Honorable Robert T. Braithwaite.
J. Bryan Jackson, Cedar City, for Appellant.
Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.
Before Judges Jackson, Davis, and Thorne.
MEMORANDUM DECISION
Douglas Doyle Dillon appeals from his convictions for burglary, a third degree felony, in violation of Utah Code Ann. § 76-6-202 (1999), and receiving stolen property, also a third degree felony, in violation of Utah Code Ann. § 76-6-408. Having fully reviewed his claims, we affirm the convictions.
Dillon initially argues that the trial court admitted two items into evidence in violation of rule 404(b) of the Utah Rules of Evidence, or, in the alternative, that the court erroneously admitted the items without subjecting them to analysis under either rule 402 or rule 403 of the Utah Rules of Evidence. However, in his reply brief, Dillon concedes that the trial court never admitted the items that are the focus of this claim. We therefore do not address this claim.
Dillon next argues that the jury was not properly instructed concerning the crime of receiving stolen property and that he was entitled to a cautionary instruction concerning the application of prior bad act evidence to the charged crime. "Where no grounds are apparent from the text of the [challenged jury] instruction and no objection is stated, the objection is presumed waived." State v. Purdue, 813 P.2d 1201, 1203 (Utah Ct.App. 1991). Moreover, "where an instruction is submitted by a party, that same party cannot later object to it because he or she has already waived any objection and endorsed it as legally sound." Id. at 1205.
Here, not only did Dillon fail to object to the proposed limiting instruction, Dillon's attorney actually submitted the proposed instruction in concert with the prosecutor. We therefore do not address Dillon's argument concerning the jury instruction.
Dillon also argues that the trial court erred in refusing to permit him to wear clothing of his own choosing during the trial. "[I]t is a constitutional violation for a state to compel an accused to stand trial before a jury dressed in prison clothes." State v. Kohl, 2000 UT 35, ¶ 21, 999 P.2d 7 (emphasis omitted). "[A] criminal defendant is generally entitled to the `physical indicia of innocence.' This indicia of innocence most often refers to the right of a criminal defendant to be tried in front of a jury in the `garb of innocence,' rather than in prison clothing." State v. Mitchell, 824 P.2d 469, 473 (Utah Ct.App. 1991) (citation omitted); see also Kohl, 2000 UT 35 at ¶ 21.
Here, prior to the jury venire being brought into the courtroom, the trial court provided Dillon with the opportunity to choose from among three different sets of clothing, including two sets owned by Dillon and retrieved by the trial court's order. While none of the clothing offered to Dillon would have qualified as business attire, it was free from any indication that Dillon was in police custody. Under protest, Dillon eventually chose to appear before the jury wearing a set of his own clothing. Thus, though Dillon may have preferred to wear different clothing at trial, the trial court provided him with clothing that carried the required "physical indicia of innocence." Mitchell, 824 P.2d at 473. Because nothing more is required, the trial court did not err.See Chess v. Smith, 617 P.2d 341, 345 (Utah 1980) (concluding that the State need only provide a defendant with "clean, respectable clothes, not identifiable as peculiarly prison clothes").
Finally, Dillon argues that it was improper for the trial court to order him to remain shackled while the jury was in the courtroom. "[T]o preserve a claim or an objection for appellate review, the defendant must raise a timely or contemporaneous claim or objection," and allow the trial court an opportunity to rule on the issue. State v. Cram, 2002 UT 37, ¶¶ 9-10, 444 Utah Adv. Rep. 15. Failure to properly preserve a claim will generally result in the claim not being reviewed on appeal.See id.
Here, Dillon was shackled when brought into court and remained so at the request of the prosecuting attorney. Dillon then objected to being handcuffed and the trial court ordered that one hand be freed to permit him the opportunity to write. Dillon made no further objection concerning the restraints. By failing to raise any additional concerns to the trial court's attention, Dillon waived any objection to their presence and we do not address this claim on appeal.
Accordingly, we conclude that Dillon has presented no meritorious issues on appeal and affirm his convictions.
WE CONCUR: Norman H. Jackson, Presiding Judge, James Z. Davis, Judge.