305 Conn. 594 (Conn. 2012)

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State v. Rose

Supreme Court of Connecticut.

Jul 10, 2012

305 Conn. 594 (Conn. 2012)

Summary

adopting per se rule of reversibility when defendant is compelled to stand trial in identifiable prison clothing and upholding Appellate Court's reversal of trial court's judgment because defendant had stood trial in such clothing

Summary of this case from In re Yasiel R.

See 11 Summaries

Opinion

No. 18323.

2012-07-10

STATE of Connecticut v. Irvin D. ROSE.

Timothy F. Costello, assistant state's attorney, with whom, on the brief, was John C. Smriga, state's attorney, and Nicholas J. Bove, Jr., senior assistant state's attorney, for the appellant (state). Deborah G. Stevenson, special public defender, for the appellee (defendant).

PALMER

The state appeals from the judgment of the Appellate Court, which reversed the conviction of the defendant, Irvin D. Rose, for assault of public safety personnel in violation of General Statutes (Sup.2006) § 53a–167c (a)(5). The Appellate Court reversed the defendant's conviction on the ground that the trial court had compelled him to wear identifiable prison clothing at his jury trial in contravention of his constitutional right to a fair trial. We affirm the judgment of the Appellate Court on the alternative ground that reversing the defendant's conviction is warranted in the exercise of this court's inherent supervisory authority over the administration of justice.

General Statutes (Sup.2006) § 53a–167c (a) provides in relevant part: “A person is guilty of assault of public safety ... personnel when, with intent to prevent a reasonably identifiable ... employee of the Department of Correction ... from performing his or her duties, and while such ... employee ... is acting in the performance of his or her duties ... (5) such person throws or hurls, or causes to be thrown or hurled, any bodily fluid including, but not limited to ... saliva at such ... employee....”

The opinion of the Appellate Court sets forth the following facts that the jury reasonably could have found. “On January 15, 2006, the defendant was incarcerated [as a pretrial detainee] at the Bridgeport correctional center (center). While housed in the center's hospital unit in an isolation cell, the defendant removed his hospital gown and pushed it, along with his blanket, under his cell door. Thereafter, he tore the seam of his mattress, created a large hole and removed the mattress' stuffing. He then crawled into the mattress and wrapped it around his body, covering himself entirely.

“Correction Lieutenant Timothy Cox was alerted by a department [of correction] employee that the defendant had crawled into his mattress. Cox instructed uniformed [C]orrection Officers Brian Guerrera and Scott Whiteley to remove the damaged mattress from the defendant's cell. Whiteley was instructed to remove the remains of the mattress while Guerrera served as a ‘cover down’ officer. Guerrera was assigned to position himself between Whiteley and the defendant, continuously to monitor the defendant and to protect Whiteley as he removed the mattress. While still outside the cell, Cox instructed the defendant to remove himself from the mattress and sit on the bunk frame. The defendant complied with the instruction, and Guerrera and Whiteley entered the cell. Whiteley picked up the damaged mattress and backed out of the cell. Guerrera maintained his position between Whiteley and the defendant and, still facing the defendant, started to exit the cell. The defendant, without leaving his position ... on the bunk, spat at Guerrera before he exited the cell. Saliva struck Guerrera's face and chest.

“Following department [of correction] protocol for such an incident, Guerrera reported to a department [of correction] nurse at the center. The nurse instructed Guerrera to wipe his face with alcohol pads and [to] complete medical and incident reports. The defendant subsequently was charged with assault of public safety personnel. The defendant represented himself at trial. After a jury trial, the defendant was found guilty and sentenced to a term of ten years incarceration, execution suspended after six years, and five years probation.” State v. Rose, 112 Conn.App. 324, 326–27, 963 A.2d 68 (2009).

The defendant appealed to the Appellate Court from the judgment of conviction, claiming, inter alia, that the trial court had improperly compelled him to wear prison clothing during trial in violation of his federal constitutional right to a fair and impartial trial and Practice Book § 44–7.Id., at 326, 331, 963 A.2d 68. With one judge concurring in part and dissenting in part; see id., at 342, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part); the Appellate Court agreed with the defendant's constitutional claim and reversed his conviction, concluding that “it is evident that the defendant did not receive a fair trial.” Id., at 342, 963 A.2d 68.

The defendant also claimed that the trial court improperly denied his motion for a judgment of acquittal because the state failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt. State v. Rose, supra, 112 Conn.App. at 327, 963 A.2d 68. The Appellate Court rejected this claim; id., at 331, 963 A.2d 68; and the defendant does not renew it on appeal to this court.

The defendant relied on § 1 of the fourteenth amendment to the United States constitution, which provides in relevant part: “No State shall ... deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Practice Book § 44–7 provides in relevant part: “An incarcerated defendant ... shall not be required during the course of a trial to appear in court in the distinctive attire of a prisoner or convict.”

The Appellate Court declined to review the defendant's claim under Practice Book § 44–7, explaining that, “[a]lthough normally [the court would] dispose of a claim on other than constitutional grounds when possible, [the court addresses] the constitutional claim here because the defendant has raised it and because the [concurring and dissenting judge] relies on Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Accordingly, [the court] will not separately review [the defendant's] claim under Practice Book § 44–7, which addresses the same protected interest.” State v. Rose, supra, 112 Conn.App. at 331–32 n. 3, 963 A.2d 68.

In resolving the defendant's constitutional claim, the Appellate Court set forth the following additional facts and procedural history that were relevant to its inquiry. “The defendant was arrested on January 15, 2006, for assault of public safety personnel. At that time, he was a pretrial detainee in the center because he was unable to post a $1000 bond for an October 24, 2005 arrest for larceny in the sixth degree.... On January 17, 2006, the defendant was arraigned on the charge of assault of public safety personnel in violation of [General Statutes (Sup.2006) ] § 53a–167c and bond was set at $100,000. He remained incarcerated as a pretrial detainee through trial in July, 2006.

“On the morning of July 21, 2006, prior to jury selection, the court stated to the defendant that ‘I don't know anything about you ... besides that information which you have, but based on the charges that I see, I'm concerned and inclined probably to keep the shackles on....’ The defendant responded that he was not an escape risk and objected to being tried in shackles. The defendant added that ‘[a]lso, my attire, Your Honor, this Bozo the Clown suit is not sufficient.’ The court replied that ‘based on the nature of the charges, the jury is going to know that you are incarcerated anyway.... I do feel that the ankle shackles are required, and the attire, sir, based on the nature of the charges, they are going to know you are incarcerated anyway.... [T]hat's how that stands.’ After the court denied the defendant's request to be tried in civilian clothing, and before the first venire panel was brought in, the defendant again raised concerns that the prospective jurors would not understand that he was a pretrial detainee, rather than an incarcerated convict. The court directed the defendant to confer with his standby counsel about his ‘procedural kind of question.’ The record discloses that the court made no further inquiry concerning this issue during trial.

“During jury selection, the court instructed the members of each venire panel not to consider the defendant's attire in assessing the evidence or in the determination of the outcome of the case. The court's entire instruction to the first venire panel was: ‘The defendant's attire is not to be considered in assessing the evidence or in a determination of the case.’ The court instructed the second panel: ‘I would also note that the defendant's attire is not to be considered by you in assessing the evidence or in determining the outcome of the case.’ The jury was selected from those two venires. The instructions given by the court prior to the jury's deliberationwere completely [de]void of any curative measure concerning the defendant's attire.

“During voir dire, the defendant attempted to determine the [jurors'] assumptions based on his attire. The court repeatedly prevented the defendant from asking jurors about their assumptions about incarcerated persons.

“[During the afternoon session] on July 21, 2006, the defendant brought to the court's attention that he had been seen by one of the potential jurors outside of the courtroom in full restraints. The court responded that ‘[f]or heaven's sake, sir, you are clearly in restraints. Everyone knows you are in restraints. You are in a prison outfit. This is not a secret. You are walking around with the shackles on approaching the jurors, so, please.’ The court began to call in the next prospective juror but stopped and noted on the record that during voir dire, each juror could see the defendant's ankle shackles when he walked to the lectern and that he was sitting in court in a jumpsuit. The court also noted that it had instructed the jurors not to consider his attire.

“The first witness, Guerrera ... testified in uniform. Guerrera stated that he was in his uniform at the time of the alleged assault. The [state] asked him to identify the defendant, and Guerrera stated that the defendant was wearing ‘[a] yellow jumper.’ ” State v. Rose, supra, 112 Conn.App. at 332–34, 963 A.2d 68.

Reversing the defendant's conviction, the Appellate Court concluded that the trial court had impermissibly compelled the defendant to stand trial in identifiable prison clothing in contravention of his constitutional right to a fair trial. Id., at 338, 342, 963 A.2d 68. Relying in part on Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), the Appellate Court reasoned that “it is inappropriate to apply harmless error analysis in cases such as this [one, in which] the defendant clearly [had] objected at trial and the [trial] court [made] no findings with respect to an essential state policy” militating in favor of compelling the defendant to stand trial in prison clothing. State v. Rose, supra, 112 Conn.App. at 340, 963 A.2d 68. The Appellate Court also concluded that, “[e]ven if [it] assume[d] that harmless error analysis were appropriate, the state [had] not proven harmlessness beyond a reasonable doubt.... [T]he defendant was compelled to wear prison garb during jury selection and the entire three days of evidence, and the court instructed the jurors only once, prior to their individual voir dire and selection, that they should not consider the defendant's attire. There was no further instruction at the end of evidence and before deliberation, nor was there any instruction that would discourage the jurors from assuming that the defendant had been convicted of some prior crime. Furthermore, [the trial court gave] no curative instruction ... after a potential juror saw the defendant in the hallway in prison garb, belly chains and ankle shackles; this further indicates the court's failure to consider the prejudice to the defendant should he be tried in his ‘Bozo the Clown suit....’ Finally, the potential prejudice to the defendant in this case was especially great because the jury had to find that he had the mens rea or ‘guilty mind’ required by the statute.... An essential element of the crime—and the only real issue in dispute—was the defendant's intent. Although the evidence was sufficient for the jury to infer that the defendant intended to prevent Guerrera from performing his duties, the evidence of his intent was not so ‘overwhelming’ that there is no reasonable possibility that the defendant's appearance in prison garb might have contributed to his conviction.” (Citations omitted.) Id., at 341–42, 963 A.2d 68.

The Appellate Court's use of the term “essential state policy” stems from Estelle, in which the United States Supreme Court indicated that compelling a defendant to appear before a jury in prison clothing offends due process because the practice cannot be justified by an “essential state policy.” Estelle v. Williams, supra, 425 U.S. at 505, 96 S.Ct. 1691; see also Carey v. Musladin, 549 U.S. 70, 75, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006) (quoting Estelle and explaining that “some [government sponsored] practices are so inherently prejudicial that they must be justified by an essential state policy or interest” [internal quotation marks omitted] ).

Although it reversed the defendant's conviction, the Appellate Court noted that it “[did] not announce a per se rule that trial in prison clothing after an objection requires automatic reversal of a trial court's judgment of conviction. A [trial] court must make a record establishing the ‘essential state policy’ for such precautions. Furthermore, if such an interest can be shown, the jurors must be instructed adequately that they must not consider the appearance of the defendant in prison attire in any way when determining guilt or innocence. These requirements are necessary to safeguard a defendant's rights to a fair trial and the presumption of innocence.” State v. Rose, supra, 112 Conn.App. at 340–41, 963 A.2d 68. The Appellate Court also noted that “[t]here may well have been no error if the [trial court] had inquired where [the defendant] had other clothes available and how much time would be required to get those clothes to the courthouse. A fully developed inquiry along [these] lines may have supported a finding that [the defendant] waived his right to appear in non-prison garb.... In the interest of justice, however, [the Appellate Court] urge[d] trial courts to utilize reasonable efforts to ensure that defendants who object to wearing prison garb are able to obtain civilian clothing.” (Citation omitted; internal quotation marks omitted.) Id., at 338 n. 11, 963 A.2d 68.

Judge Foti agreed with the Appellate Court majority that the trial court had improperly compelled the defendant to stand trial in identifiable prison clothing but disagreed with the majority's two fold conclusion, namely, that the trial court's error was insusceptible to harmless error analysis and that the error was in any event not harmless beyond a reasonable doubt. Id., at 342–43, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part). Judge Foti explained: “The [Appellate Court] majority declares that Estelle v. Williams, [supra, 425 U.S. at 501, 96 S.Ct. 1691], does not stand for the proposition that harmless error analysis applies to circumstances in which a defendant is impermissibly compelled to stand trial in prison attire. I agree that Estelle does not stand for this proposition because the question of whether compelling a defendant to attend trial in prison attire could result in harmless error was not before the court. The question before the court in Estelle was whether an accused who is compelled to wear identifiable prison clothing at his trial by a jury is denied due process or equal protection of the laws; id., at 502, 96 S.Ct. 1691; in other words, [did] a constitutional error [occur] at all. The court concluded that [a]lthough the [s]tate cannot, consistently with the [f]ourteenth [a]mendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court ... is sufficient to negate the presence of compulsion necessary to establish a constitutional violation.... Id., at 512–13, 96 S.Ct. 1691. The court also found that there was no compulsion in Estelle because the defendant [in that case] did not timely object, and, therefore, there was no error. The court simply did not address the applicability of harmless error analysis because the error was not established.” (Internal quotation marks omitted.) State v. Rose, supra, 112 Conn.App. at 343–44, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part). Judge Foti acknowledged the absence of binding precedent establishing that harmless error analysis applies to cases such as this one but noted that the “state and federal appellate courts confronting this issue have approved of applying such analysis.” Id., at 344, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part). Deeming the evidence of the defendant's intent “not only sufficient to support the conviction but overwhelming as well,” Judge Foti concluded that the trial court's erroneous decision to compel the defendant to stand trial in identifiable prison clothing was harmless beyond a reasonable doubt. Id., at 349, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part).

On appeal to this court, the state claims that the Appellate Court incorrectly concluded that the doctrine of harmless error does not apply to the defendant's claim that the trial court impermissibly compelled him to wear identifiable prison clothing at his jury trial. The state also claims that the Appellate Court incorrectly concluded that the defendant's appearance in identifiable prison clothing was not harmless beyond a reasonable doubt. The defendant disputes these claims, countering that the trial court's decision to compel him to stand trial in identifiable prison clothing is not properly subject to harmless error analysis because such compulsion amounts to structural constitutional error, which renders his conviction reversible per se.

We granted the state's petition for certification to appeal limited to the following issues: “Did the Appellate Court properly determine that harmless error analysis does not apply where the trial court has compelled the defendant to appear before a jury in identifiable prison garb? If not, was the defendant's appearance before the jury in identifiable prison garb harmless beyond a reasonable doubt?” State v. Rose, 290 Conn. 920, 921, 966 A.2d 238 (2009).

The defendant also makes several claims of his own, none of which we need review. The defendant first claims that the Appellate Court improperly determined that he had abandoned his claim that the trial court committed reversible error when it ordered him to appear in shackles during his trial. See State v. Rose, supra, 112 Conn.App. at 340 n. 14, 963 A.2d 68. We need not review this claim both because it is outside the scope of the certified question and because, even if the defendant were to prevail on the claim, he would garner the very relief that this decision already affords him, namely, a new trial. The defendant also raises what amounts to a claim for conditional relief, namely, that, if this court remands the case to the Appellate Court for further consideration, it should order the Appellate Court to consider and resolve “all issues [that] the defendant raised but [that] were not considered and/ or decided previously by the Appellate Court,” including the defendant's claim that the trial court improperly denied him the opportunity to present a defense by declining to grant him a continuance after he informed the court that he was not prepared to proceed. We need not review this claim for the simple reason that we do not remand the case to the Appellate Court. Finally, the defendant urges this court to issue a discovery order pertaining to, inter alia, “videotapes of the incident and tapes [and] transcriptions of his trial....” We do not review this claim because it is outside the scope of the certified question.

After hearing argument in the present appeal, we ordered the parties to submit supplemental briefs on the issue of “[w]hether this court should affirm the judgment of the Appellate Court on the [alternative] ground that reversal of the defendant's conviction is warranted in the exercise of this court's inherent supervisory authority over the administration of justice.” In its supplemental brief, the state argues that this court should not exercise its supervisory authority because the integrity of the defendant's trial and the fairness of the judicial system have received adequate protection from three sources, namely, the harmless error doctrine, the Appellate Court's decision in this case, which, in the state's view, “already has encouraged a regime that, going forward, affords protections to criminal defendants regarding [their] compelled appearance at trial in identifiable prison garb,” and Practice Book § 44–7; see footnote 4 of this opinion; which prohibits a court from compelling an incarcerated defendant to stand trial in prison clothing. The state also argues that, if this court elects to exercise its supervisory authority, it should issue a prospective rule and reinstate the defendant's conviction. In the defendant's supplemental brief, he repeats his principal constitutional argument, namely, that the trial court's erroneous decision to compel him to wear identifiable prison clothing at his jury trial is not properly subject to harmless error analysis because such compulsion amounts to structural constitutional error, which renders his conviction reversible per se. The defendant also argues that, if this court declines to reach the merits of the constitutional issue, it should uphold the Appellate Court's reversal of his conviction by exercising its supervisory authority in order to send a strong message to trial courts “about upholding the constitutional rights of all defendants, not just those who can afford to post a bond.”

As we noted at the outset, we conclude that reversing the defendant's conviction is warranted in the exercise of our inherent supervisory authority over the administration of justice. Pursuant to that authority, we adopt a rule that the conviction of a defendant who is compelledto stand trial in identifiable prison clothing in violation of his or her constitutional rights is reversible per se. Because we decide this case on the basis of our supervisory authority, we need not resolve the issue of whether a trial court's constitutionally erroneous decision to compel a defendant to stand trial before a jury in identifiable prison clothing is susceptible to harmless error analysis, as the state claims, or instead amounts to structural error, as the defendant contends and as the Appellate Court apparently concluded.

Under the supervisory rule we adopt, the trial court shall have an obligation to ensure that a criminal defendant is provided with civilian clothing when the defendant, having objected to appearing before the jury in prison garb, can establish that he lacks access to civilian clothing because of his indigence or his status as an incarcerated person. See, e.g., Felts v. Estelle, 875 F.2d 785, 786–87 (9th Cir.1989) (trial court improperly compelled indigent defendant to wear prison garb at his jury trial by failing to ensure that defendant was provided civilian clothing when police had lost all of defendant's clothing and he could not afford to buy new clothing).

Before addressing the state's claim that the Appellate Court improperly reversed the judgment of conviction, we first consider the state's assertion that, because this court “ordinarily invoke[s][its] supervisory powers to enunciate a rule that is not constitutionally required but that [it] think[s] is preferable as a matter of policy”; (emphasis added; internal quotation marks omitted) State v. Marquez, 291 Conn. 122, 166, 967 A.2d 56, cert. denied, ––– U.S. ––––, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009); we may exercise our supervisory authority in this case only if we first conclude both that harmless error analysis does apply and that any error was harmless beyond a reasonable doubt. Although it might well be true that we ordinarily invoke our supervisory authority to grant relief to defendants whose constitutional claims are unavailing, we on several previous occasions have declined to address a defendant's constitutional claim precisely because we elected to exercise our supervisory authority. See, e.g., State v. Padua, 273 Conn. 138, 178–79, 869 A.2d 192 (2005); State v. Coleman, 242 Conn. 523, 534, 700 A.2d 14 (1997).

Not only is there no ironclad requirement that we refrain from granting a defendant relief pursuant to our supervisory authority unless we first reject any relevant constitutional claim, but such a requirement would function as an improper restraint on that authority. “It is well settled that [a]ppellate courts possess an inherent supervisory authority over the administration of justice.... Supervisory powers are exercised to direct trial courts to adopt judicial procedures that will address matters that are of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... Under our supervisory authority, we have adopted rules intended to guide the lower courts in the administration of justice in all aspects of the criminal process.” (Internal quotation marks omitted.) State v. Diaz, 302 Conn. 93, 106, 25 A.3d 594 (2011). Although prudence dictates that we invoke our supervisory power sparingly; see, e.g., State v. Wade, 297 Conn. 262, 296, 998 A.2d 1114 (2010) (supervisory power is extraordinary remedy to be used only in rare circumstance when necessary to ensure fair and just administration of courts); we see no reason to limit our use of that authority in the categorical manner advocated by the state. We also disagree with the dissent's assertion that the manner in which we now exercise our supervisory authority “runs counter to this court's and the United States Supreme Court's principle that errors, even of constitutional magnitude, should be reviewed under a harmless error analysis unless such an analysis is not possible.” We are aware of no principle that would bar us from exercising our supervisory authority to craft a remedy that might extend beyond the constitutional minimum, and the dissent cites no such principle. Indeed, if the dissent is correct in concluding that the constitution does not require us to reverse the defendant's conviction, then the supervisory rule that we announce today is perfectly in line with the general principle that this court “ordinarily invoke[s] [its] supervisory powers to enunciate a rule that is not constitutionally required but that [it] think[s] is preferable as a matter of policy.” (Emphasis added; internal quotation marks omitted.) State v. Marquez, supra, 291 Conn. at 166, 967 A.2d 56.

Asserting that our “reliance on our supervisory authority ... runs counter to other jurisdictions that have considered this issue”; footnote 12 of the dissenting opinion; the dissent writes, “I have not found, and the majority does not refer to, any jurisdiction that has determined that a defendant's compelled appearance at trial in prison attire should be reviewed under anything other than a harmless error analysis. Nor am I aware of any jurisdiction that has invoked its own supervisory authority to craft the rule that the majority does in the present case.” (Emphasis in original.) Id. Assuming for the sake of argument that it matters in this case how courts in other jurisdictions have exercised their supervisory authority, we note that the dissent does not cite a single case in which a court was actually asked to exercise its supervisory authority to preclude harmless error review of a defendant's compelled appearance in prison clothing.

Turning to the merits of the state's claim, we are persuaded that this case implicates the core considerations that we previously have identified as prerequisites to the invocation of our supervisory authority. Compelling a defendant to stand trial before a jury in identifiable prison clothing undermines the integrity of the defendant's trial and diminishes the perceived fairness of the judicial system as a whole. See, e.g., Estelle v. Williams, supra, 425 U.S. at 504–505, 96 S.Ct. 1691. Specifically, such compulsion compromises the jury's ability to engage in neutral fact-finding and erodes the presumption of innocence. See, e.g., id.; see also id., at 518–19, 96 S.Ct. 1691 (Brennan, J., dissenting). The United States Supreme Court, in explaining why a defendant's compelled appearance in prison clothing contravenes the fourteenth amendment's guarantee of a fair trial, has observed that “the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play.” Id., at 504–505, 96 S.Ct. 1691. “Unlike physical restraints, [which are] permitted under [Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), when they are necessary to control an unruly defendant], compelling an accused to wear jail clothing furthers no essential state policy. That it may be more convenient for jail administrators, a factor quite unlike the substantial need to impose physical restraints [on] contumacious defendants, provides no justification for the practice.” Estelle v. Williams, supra, at 505, 96 S.Ct. 1691

Writing separately in Estelle, Justice William J. Brennan, Jr., added: “Identifiable prison garb robs an accused of the respect and dignity accorded other participants in a trial and constitutionally due the accused as an element of the presumption of innocence, and surely tends to brand him in the eyes of the jurors with an unmistakable mark of guilt. Jurors may speculate that the accused's pretrial incarceration, although often the result of his inability to raise bail, is explained by the fact [that] he poses a danger to the community or has a prior criminal record; a significant danger is thus created of corruption of the [fact-finding] process through mere suspicion. The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the [d]ue [p]rocess [c]lause forbids toleration of the risk. Jurors required by the presumption of innocence to accept the accused as a peer, an individual like themselves who is innocent until proved guilty, may well see in an accused garbed in prison attire an obviously guilty person to be recommitted by them to the place where his clothes clearly show he belongs. It is difficult to conceive of any other situation more fraught with risk to the presumption of innocence and the standard of reasonable doubt.” Id., at 518–19, 96 S.Ct. 1691 (Brennan, J., dissenting).

The gravamen of Estelle is that compelling a defendant to stand trial in identifiable prison clothing is unfair not merely because it “inject [s] ... improper evidence of the defendant's imprison[ment] status into the presentation of the case,” as the state observes, but also, more fundamentally, because the defendant's appearance in prison clothing invites and indeed tempts jurors to draw highly unfavorable inferences about his character and likely conduct. The state nevertheless contends that compelling a defendant to appear in identifiable prison clothing does not deprive him of a fair trial when, as in the present case, “the defendant was on trial for a crime committed while in jail and [when] the defendant's incarcerat [ion] status would necessarily be made known to the jury through the state's proof and the defendant's exhibits....” The state and the dissent apparently assume that a defendant's yellow jumpsuit can have no effect on jurors but to inform them that the defendant is currently in custody. This assumption strikes us as unrealistic. When a defendant wears identifiable prison clothing throughout his trial, his very appearance serves as a constant reminder to the jury that he is not only a detainee but perhaps also a flight risk and a threat. We therefore reject the state's attempt to characterize “an appearance in prison garb [as merely] the injection of improper evidence of the defendant's imprison[ment] status into the presentation of the case....” Because prison clothing is a constant and vivid indication that its wearer is a detainee and perhaps also a flight risk and a threat, a defendant's appearance in identifiable prison clothing does something substantially worse than inject improper evidence into the case, namely, it causes jurors to deliberate under a cognitive bias. Because this bias is subtle and ever present, jury instructions may not be adequate to cure it.

The dissent notes that, because “the elements of the crime charged [in the present case] required the state to establish that the victim was a correction officer and was engaged in the line of duty.... [I]f the defendant had not been clothed in prison attire, the jury would nonetheless have learned of the defendant's incarceration status. This aspect of the case, coupled with the copious and essentially uncontested evidence of the defendant's guilt, rendered the [trial court's] error harmless.”

This reminder is not just constant; it is supremely vivid. As everyone knows, the reason why prison jumpsuits are typically yellow or orange is that these colors have a high degree of visual salience; in short, they command attention.

In view of these dangers, we believe that announcing a rule of per se reversibility will serve at least two purposes not served by the existing protections that the state deems adequate, namely, the harmless error doctrine and Practice Book § 44–7. First, a rule of per se reversibility will serve to put trial courts on notice that compelling a defendant to stand trial in identifiable prison clothing simply cannot be sanctioned. Unlike a prosecutor who makes improper remarks during closing argument or a judge who makes an erroneous evidentiary ruling, the judge who compels a defendant to stand trial in identifiable prison clothing does not commit an error that plausibly could be excused as occurring in the heat of battle. Second, a rule of per se reversibility will send a strong message to the public that this court and the judiciary that it supervises accord the highest importance to basic fairness and to the presumption of innocence. If we did not always reverse the convictions of defendants who are compelled to stand trial in identifiable prison clothing, we would convey a most damaging message, namely, that we place less value on basic fairness and the presumption of innocence than on sparing the trial court the minimal inconvenience of ensuring that a needy criminal defendant will be provided with civilian clothing. We note in this connection that “compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Persons who can secure release are not subjected to this condition. To impose the condition on one category of defendants, over objection, would be repugnant to the concept of equal justice embodied in the [f]ourteenth [a]mendment.” Estelle v. Williams, supra, 425 U.S. at 505–506, 96 S.Ct. 1691. Although it is beyond our power to remove every single obstacle confronting an indigent criminal defendant, we would be remiss if we did not remove those obstacles that we can remove at virtually no cost. Accordingly, in the absence of a defendant's voluntary decision to stand trial before a jury in prison clothing, a court must ensure that the defendant has civilian clothing to wear at trial, and its failure to comply with this requirement will result in reversal of the defendant's conviction.

Because neither Practice Book § 44–7 nor existing precedent provides that a conviction shall be reversed when obtained after a trial court's erroneous decision to compel the defendant to stand trial in identifiable prison clothing, we do not agree with the state's assertion that the “exercise of supervisory power [in this case] would serve only to reiterate [Practice Book § 44–7] and binding precedent.”

Because the trial court's erroneous decision in this case lacked any arguable justification, the court having had no reason to depart from Practice Book § 44–7 and unambiguous United States Supreme Court precedent having established that compelling a defendant to appear in identifiable prison clothing violates the defendant's right to a fair trial, and because the state took no action to remedy the trial court's error, we decline the state's invitation to adopt a prospective rule that would require us to reinstate the defendant's conviction.

As we noted previously in this opinion; see footnote 10 of this opinion; under the supervisory rule we adopt, the trial court shall have an obligation to ensure that a criminal defendant is provided with civilian clothing when the defendant objects to wearing prison garb and he can establish that he lacks access to such clothing because of his indigence or his status as an incarcerated person.

Because the supervisory rule we announce in the present case applies only to defendants who are compelled to stand trial in identifiable prison clothing, this rule obviously does not apply to a defendant who, for strategic reasons, stands trial in prison clothing voluntarily. Accordingly, we do not agree with the state's contention that “establishing a rule of per se reversibility ... would be peculiar in the context of the compelled appearance before a jury in identifiable prison garb—the right against which may be waived, and which ... may serve to garner a defendant sympathy in the eyes of the [jurors].” Contrary to the state's contention, a defendant cannot waive the right not to be compelled to appear before a jury in identifiable prison clothing. The defendant who stands trial in prison clothing voluntarily is, by definition, not compelled to do so; thus, his constitutional right simply is not in play.

In contrast to the suggestion of the Appellate Court; see footnote 7 of this opinion; we cannot conceive of a circumstance in which a “ ‘essential state policy’ ” would exist to justify the denial of a defendant's right not to be compelled to stand trial before a jury in prison clothing. State v. Rose, supra, 112 Conn.App. at 340, 963 A.2d 68; cf. Deck v. Missouri, 544 U.S. 622, 624, 632–33, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (use of visible shackles on defendant during guilt or penalty phase of death penalty trial cannot be justified in absence of exceptional circumstances related to security or safety).

Even though the state's case against an occasional defendant might be so overwhelming that he undoubtedly would be convicted at trial regardless of whether he is compelled to appear in identifiable prison clothing, we cannot sanction a legal regime that would afford the state an opportunity to argue on appeal that no harm resulted from so unambiguous and indefensible a constitutional violation. Thus, unlike the dissent, we see no need to inquire as to whether there was “any prejudice in the present case....” We also reject the dissent's contention that our “reasoning, taken to its logical end, suggests that any error, even when harmless, should result in the reversal of a defendant's conviction if the nature of the error is one that implicates a constitutional right.” The type of error at issue in this case stands out as especially worthy of per se reversal because no extenuating circumstances are conceivable. First of all, the type of error at issue in the present case is readily avoidable, both because avoidance is virtually costless and because the error is clear-cut and unambiguous, unlike, for example, a judge's erroneous but understandable failure to exclude evidence barred by the intricate and evolving jurisprudence of the confrontation clause. Moreover, the error here, unlike an erroneous evidentiary ruling or an improper remark during closing argument, is not an error of the sort that can be excused as occurring in the heat of battle. Finally, unlike most other constitutional errors, compelling a defendant to stand trial in identifiable prison clothing is not just highly demeaning but also potentially highly prejudicial in a manner the effects of which may be very difficult to measure because they involve a subtle but ever present cognitive bias.

The dissent “fail[s] to comprehend how compelling a defendant to stand trial in prison attire is substantially different from compelling a defendant to appear shackled at trial without sufficient justification.” Footnote 13 of the dissenting opinion. Although we might well adopt a comparable supervisory rule for improper shackling if asked to do so, we note that improper shackling differs in at least one important respect from a court's improper decision to compel a defendant to stand trial in prison clothing: whereas there is never justification for compelling a defendant to stand trial in identifiable prison clothing, there sometimes is ample justification for compelling a defendant to stand trial in shackles. See, e.g., State v. Tweedy, 219 Conn. 489, 505, 594 A.2d 906 (1991) (“[a] trial court may employ a reasonable means of restraint [e.g., shackles] upon a defendant if, exercising its broad discretion in such matters, the court finds that restraints are reasonably necessary under the circumstances” [internal quotation marks omitted] ). In any event, to the extent that some cases have indicated that improper shackling should be subject to harmless error analysis, in none of the cases that the dissent cites did the defendant ask the court to exercise its supervisory authority.

The ill effects of a defendant's compelled appearance in prison clothing being very difficult to measure, we are loath to engage in the sort of harmless error analysis that the dissent urges. In fact, this very case shows why, even when the state's evidence appears to be strong, it can be so difficult to determine the nature and extent of the harm that results from a defendant's compelled—and, as in this case, prolonged—appearance in prison clothing. Although the manner in which we resolve this case obviates the need to determine whether the error was harmful, we are sympathetic to the view expressed by the Appellate Court that “the potential prejudice to the defendant in this case was especially great because the jury had to find that he had the mens rea or ‘guilty mind’ required by [General Statutes (Sup.2006) § 53a–167c (a)(5) ].... An essential element of the crime—and the only real issue in dispute—was the defendant's intent [to prevent Guerrera from performing his duties]”; State v. Rose, supra, 112 Conn.App. at 341–42, 963 A.2d 68; an issue on which the state's evidence was sufficient but, in the judgment of the Appellate Court, “not so overwhelming that there [was] no reasonable possibility that the defendant's appearance in prison garb might have contributed to his conviction.” (Internal quotation marks omitted.) Id., at 342, 963 A.2d 68. To the extent that the jurors might have mistakenly believed that the defendant, in light of his clothing, was a convicted prisoner rather than a pretrial detainee, any prejudice resulting from the defendant's compelled appearance in prison clothing would only have grown more intense.

The judgment of the Appellate Court is affirmed. In this opinion ROGERS, C. J., and NORCOTT, EVELEIGH, HARPER and VERTEFEUILLE, Js., concurred.

ZARELLA, J., dissenting.

A trial court commits an error of constitutional magnitude when it requires a criminal defendant to appear in prison clothing at trial over the defendant's objection. In virtually every case, however, that error is readily identifiable and, therefore, properly reviewed on appeal under harmless error analysis. Although the inherently prejudicial nature of the error often will merit reversal of a defendant's conviction, in some cases, the circumstances will lead to the conclusion that the error, while serious, was nonetheless harmless. For that reason, I disagree with the majority's approach to deciding this case pursuant to this court's inherent supervisory authority. The majority fails to explain why it is necessary to resort to our supervisory authority for this particular error, instead of following the precedent of this court and the United States Supreme Court dictating that trial errors resulting in an identifiable harm are to be reviewed under harmless error analysis.

In the present case, the elements of the crime and facts of the case necessarily informed the jury that the defendant, Irvin D. Rose, was incarcerated at the time the crime was committed, the defendant introduced evidence that he was incarcerated when the crime was committed, and the state presented overwhelming evidence of the defendant's guilt. Thus, under the harmless error doctrine, I conclude that the state has demonstrated that the defendant's appearance throughout trial in prison clothing, although an error of constitutional magnitude, was harmless beyond a reasonable doubt. Accordingly, I would reverse the judgment of the AppellateCourt and reinstate the defendant's conviction. I therefore respectfully dissent.

The majority thoroughly recites the facts of the case, and I repeat the essential facts. The defendant was incarcerated in a correctional center following his inability to post bail for a separate, charged offense. While housed in isolation in the correctional center's hospital wing, the defendant tore open his mattress, removed its stuffing and crawled inside. Two correction officers, Brian Guerrera and Scott Whiteley, were dispatched to order the defendant to exit the mattress and then to remove the mattress from the defendant's jail cell. The defendant complied initially with the officers' instructions. As the officers were leaving the defendant's cell, the defendant spat at Guerrera. The defendant's saliva came in contact with Guerrera's face and chest. Guerrera then reported to a correctional center nurse and completed medical and incident reports. On the basis of these facts, the defendant was charged with assault of public safety personnel in violation of General Statutes (Sup.2006) § 53a–167c (a)(5).

Prior to the jury selection process, the defendant, who represented himself, objected to appearing in his prison attire. The trial court overruled the defendant's objection, primarily on the ground that the jury would be aware of the defendant's incarceration status at the time the crime was committed because of the nature of the charges. During jury selection, however, the court instructed the members of the two venire panels not to consider the defendant's attire. The court gave no further instruction during the trial regarding the defendant's attire.

The trial court did not distinguish between the jury's knowledge that the defendant was incarcerated when the crime was committed as opposed to the defendant's appearance at trial in prison garb. See footnote 6 of this opinion.

During trial, both the state and the defendant introduced direct and indirect evidence of the defendant's incarceration status at the time the charged offense was committed. Specifically, the state called three witnesses, including Guerrera and Whiteley, who testified that the incident occurred in a correctional center. The defendant also elicited testimony from these witnesses to the same effect and introduced into evidence voluminous exhibits that referred to his incarceration status. At no point during the trial did the state refer to the defendant's attire or suggest that the defendant's incarceration status should factor into the jury's determination of guilt. The jury found the defendant guilty of violating General Statutes (Sup.2006) § 53a–167c (a)(5), and the defendant appealed to the Appellate Court from the judgment of conviction. The Appellate Court reversed the defendant's conviction, concluding that the defendant had been denied a fair trial because he had been compelled to stand trial in identifiable prison attire. State v. Rose, 112 Conn.App. 324, 331–32, 342, 963 A.2d 68 (2009). In doing so, the Appellate Court rejected the state's argument that the trial court's error should have been reviewed under harmless error analysis. Id., at 340, 963 A.2d 68. For the reasons that follow, I disagree with the Appellate Court's reasoning that harmless error analysis does not apply to the error in this case. I also disagree with the majority's decision to decide this case pursuant to this court's supervisory authority.

It appears that the sole reference to the defendant's attire before the jury occurred when the state's witness identified the defendant in the courtroom as the individual dressed in “ ‘[a] yellow jumper.’ ” State v. Rose, 112 Conn.App. 324, 334, 963 A.2d 68 (2009).

I

In order to determine whether the Appellate Court properly reversed the defendant's conviction on the ground that the trial court impermissibly had compelled the defendant to stand trial in prison attire, two threshold issues must be addressed: first, whether the alleged impropriety actually constitutes error; and, second, if the trial court did commit error, whether that error is appropriately reviewed under harmless error analysis, or whether it is a structural error requiring automatic reversal. Numerous jurisdictions have addressed these issues, and they provide a thorough documentation of the state of the law.

Because the Appellate Court reversed the defendant's conviction primarily on the basis of its legal conclusion that the trial court committed an error not susceptible to harmless error analysis, I review the Appellate Court's decision de novo. See, e.g., Wiseman v. Armstrong, 295 Conn. 94, 106, 989 A.2d 1027 (2010).

The question of whether the trial court committed error when it compelled the defendant to appear in prison attire at trial is easily answered. The United States Supreme Court held, in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), that “[a] [s]tate cannot, consistently with the [f]ourteenth [a]mendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes....” Id., at 512, 96 S.Ct. 1691. Subsequent case law has consistentlyreaffirmed and applied this holding, including this court in State v. Williamson, 206 Conn. 685, 704–705, 539 A.2d 561 (1988). Thus, because the defendant timely and properly objected to appearing at trial in prison attire, the trial court committed an error of constitutional magnitude by overruling the defendant's objection.

In Estelle, the United States Supreme Court ultimately concluded that no constitutional violation occurred because the defendant never objected to being required to wear prison attire. See Estelle v. Williams, supra, 425 U.S. at 512–13, 96 S.Ct. 1691. Thus, the defendant could not claim that he was compelled in violation of the fourteenth amendment. See id. For this reason, the court, although recognizing the apparent relevance of the harmless error doctrine to the type of error at issue in Estelle; see id., at 506–509, 96 S.Ct. 1691; did not explicitly decide whether the doctrine applied in that case.

Additionally, the trial court improperly conflated the defendant's incarceration status at the time the crime was committed with the defendant's appearance at trial in prison attire. The fact that the jury ultimately would learn that the defendant was previously incarcerated does not mean that it was proper for him to appear at trial in prison attire, which alerted the jury to his incarceration status at the time of trial. Indeed, it was no more proper for the trial court to compel the defendant to stand trial in prison attire than it would be for the state to introduce a criminal defendant's prior criminal history in order to show the defendant's criminal propensity. See, e.g., State v. Collins, 299 Conn. 567, 582, 10 A.3d 1005 (2011) (“As a general rule, evidence of prior misconduct is inadmissible to prove that a criminal defendant is guilty of the crime of which the defendant is accused.... Such evidence cannot be used to suggest that the defendant has a bad character or a propensity for criminal behavior.” [Internal quotation marks omitted.] ).

Having concluded that the trial court committed an error of constitutional magnitude, it must be determined whether that error properly is reviewed pursuant to our harmless error doctrine, or whether it is structural error. I begin by noting that “[t]he harmless error doctrine is essential to preserve the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial. Arizona v. Fulminante, [499 U.S. 279, 308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ]; see also Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). State v. Anderson, 255 Conn. 425, 444, 773 A.2d 287 (2001). In contrast, the [United States] Supreme Court has noted that there is a very limited class of cases involving error that is structural, that is to say, error that transcends the criminal process. Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997); [see] Sullivan v. Louisiana, 508 U.S. 275, [280–81] 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (defective reasonable doubt instruction); Vasquez v. Hillery, 474 U.S. 254, [263–64] 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) (racial discrimination in selection of grand jury); Waller v. Georgia, 467 U.S. 39, [49–50] 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public [hearing on motion to suppress] ); McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (denial of self-representation at trial) ... Tumey v. Ohio, 273 U.S. 510, [535] 47 S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge).” (Citation omitted; internal quotation marks omitted.) State v. Lopez, 271 Conn. 724, 733, 859 A.2d 898 (2004).

“In most cases involving constitutional violations ... this court applies harmless error analysis. See, e.g., State v. Carpenter, 275 Conn. 785, 832–33, 882 A.2d 604 (2005) (admission of statements in violation of constitutional right to confrontation was harmless error), cert. denied, 547 U.S. 1025, 126 S.Ct. 1578, 164 L.Ed.2d 309 (2006); State v. Padua, 273 Conn. 138, 166–67, 869 A.2d 192 (2005) (although improper jury instruction violated due process rights, error [was] harmless); State v. Montgomery, 254 Conn. 694, 715–18, 759 A.2d 995 (2000) (admission of evidence concerning defendant's silence was harmless error despite violation of due process rights).” State v. Brown, 279 Conn. 493, 505–506, 903 A.2d 169 (2006); see also Small v. Commissioner of Correction, 286 Conn. 707, 723, 946 A.2d 1203 (“It is well settled that a reviewing court evaluates a trial error of constitutional magnitude under the harmless error standard.... [A] reviewing court must determine whether the state has proved that the unconstitutional error was harmless beyond a reasonable doubt.” [Citations omitted.] ), cert. denied sub nom. Small v. Lantz, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008).

In rare instances, however, harmless error analysis may be inappropriate, as the error is structural in nature. “Structural [error] cases defy analysis by harmless error standards because the entire conduct of the trial, from beginning to end, is obviously affected.... These cases contain a defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.... Such errors infect the entire trial process ... and necessarily render a trial fundamentally unfair.... Put another way, these errors deprive defendants of basic protections without which a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence ... and no criminal punishment may be regarded as fundamentally fair.” (Emphasis added; internal quotation marks omitted.) State v. Lopez, supra, 271 Conn. at 733–34, 859 A.2d 898. Compare State v. Murray, 254 Conn. 472, 496–99, 757 A.2d 578 (2000) (improper substitution of alternate juror after deliberations had begun was structural error because reviewing court could not assess effect of impropriety on outcome of trial), with State v. Brown, supra, 279 Conn. at 510–11, 903 A.2d 169 (“any prejudice that the defendant may have suffered in the presentation of his defense as a result of the denial of counsel at the probable cause hearing [was] similarly discernable [on] appeal” and therefore did not constitute structural error).

“For example, in State v. Peeler, 265 Conn. 460, 475–76, 828 A.2d 1216 (2003), cert. denied, 541 U.S. 1029, 124 S.Ct. 2094, 158 L.Ed.2d 710 (2004), we concluded that the improper denial of the defendant's constitutional right to counsel of choice during the trial was not subject to harmless error review because it constituted a fundamental component of the sixth amendment right to a fair trial. In State v. Murray, 254 Conn. 472, 499, 757 A.2d 578 (2000), we concluded that the improper substitution of an alternate juror after deliberations had commenced constituted structural error because of [t]he inability to assess the effect of this impropriety on the defendant's trial....” (Internal quotation marks omitted.) State v. Brown, supra, 279 Conn. at 505, 903 A.2d 169.

Turning to the specific error at issue in the present case, I conclude that compelling a defendant to appear in prison attire is not structural error and, therefore, properly may be reviewed under harmless error analysis. The harm resultingfrom the trial court's error is readily identifiable: A juror might associate prison attire with an increased likelihood that the defendant had committed the crime. In that sense, the harm is similar to that caused by requiring a defendant to remain visibly shackled or admitting unduly prejudicial testimony. Even though these errors will result in prejudice to some degree, and also may give rise to a constitutional violation, a reviewing court can review the record and determine whether other aspects of the trial minimized the prejudicial effect of the error.

With regard to the violation of Practice Book § 44–7, I note that this court also ordinarily reviews violations of the rules of practice under harmless error analysis. See, e.g., Wiseman v. Armstrong, 295 Conn. 94, 110, 989 A.2d 1027 (2010) (“[H]armless error review has been the standard of review historically applied in this state to claims of violation of the rules of practice. Our courts [o]rdinarily ... apply a harmless error analysis in determining whether a violation of a rule of practice amounts to reversible error.” [Internal quotation marks omitted.] ). Because I conclude that the constitutional error in this case should be reviewed pursuant to harmless error analysis, I see no reason to apply a different standard to a violation of the rules of practice. For the reasons set forth in part II of this opinion, I further conclude that the violation of Practice Book § 44–7 in this case was harmless beyond a reasonable doubt.

This approach aligns with the overwhelming weight of authority on the issue. “Although the applicability of harmless error analysis to circumstances in which a defendant is impermissibly compelled to attend trial in prison attire has not been addressed directly by [the Appellate] [C]ourt or [this] [c]ourt, state and federal appellate courts confronting this issue have approved of applying such analysis.... [T]he United States Court of Appeals for the Second Circuit in United States v. Hurtado, 47 F.3d 577, 581 (2d Cir.), cert. denied, 516 U.S. 903, 116 S.Ct. 266, 133 L.Ed.2d 188 (1995), declared that [e]ven [when] a defendant is compelled to wear prison clothes at trial ... that constitutional error is subject to harmless error analysis. The United States Court of Appeals for the Seventh Circuit has applied harmless error analysis in this context as well. See Whitman v. Bartow, 434 F.3d 968, 971 (7th Cir.), cert. denied, 547 U.S. 1199, 126 S.Ct. 2883, 165 L.Ed.2d 908 (2006); see also Fernandez v. United States, 375 A.2d 484, 485–86 (D.C.1977) (applying harmless error when defendant compelled to attend trial in prison attire). The Court of Appeals of Maryland in Knott v. State, 349 Md. 277, 292, 708 A.2d 288 (1998), applied harmless error analysis to this issue in factually comparable circumstances, as did the Supreme Court of Pennsylvania in Commonwealth v. Moore, 534 Pa. 527, 544–45, 633 A.2d 1119 (1993), cert. denied, 513 U.S. 1114, 115 S.Ct. 908, 130 L.Ed.2d 790 (1995) ... the Supreme Court of Louisiana in State v. Brown, 585 So.2d 1211, 1213 (La.1991) ... [and the Illinois Appellate Court in] People v. Steinmetz, 287 Ill.App.3d 1, 6–7, 222 Ill.Dec. 682, 678 N.E.2d 89 ... appeal denied, 173 Ill.2d 542, 226 Ill.Dec. 138, 684 N.E.2d 1341 (1997).” (Internal quotation marks omitted.) State v. Rose, supra, 112 Conn.App. at 344–45, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part).

In that connection, I note that “there is [United States] Supreme Court precedent holding that harmless error analysis should apply in cases [in which] the courtroom atmosphere hints at a defendant's dangerousness or guilt.... Ruimveld v. Birkett, 404 F.3d 1006, 1013 (6th Cir.2005). [Quoting] Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), the Sixth Circuit [Court of Appeals] concluded that [t]he [United States Supreme] Court [has] made clear that a particular trial practice ought to be examined as to whether it prejudiced the defendant's case. Ruimveld v. Birkett, supra, at 1013.” (Internal quotation marks omitted.) State v. Rose, supra, 112 Conn.App. at 345, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part); see Deck v. Missouri, 544 U.S. 622, 630, 632–35, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (observing that shackling is inherently prejudicial procedure but nevertheless subject to harmless error review); see also Ruimveld v. Birkett, supra, at 1013 (“it cannot be said that the [United States] Supreme Court has held squarely that shackling is a practice so prejudicial as to preclude all harmless error review”). Indeed, although the court in Estelle did not decide the issue directly; see footnote 5 of this opinion; it noted that “there may be some constitutionalerrors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the [f]ederal [c]onstitution, be deemed harmless, not requiring the automatic reversal of the conviction....

“In other situations, when, for example, the accused is being tried for an offense committed in confinement, or in an attempted escape, courts have refused to find error in the practice. In United States ex rel. Stahl v. Henderson, 472 F.2d 556 [ (5th Cir.) ], cert. denied, 411 U.S. 971 [93 S.Ct. 2166, 36 L.Ed.2d 694] (1973), the [Fifth Circuit] Court of Appeals declined to overturn a conviction [when] the defendant, albeit tried in jail clothes, was charged with having murdered another inmate while confined in prison. No prejudice can result from seeing that which is already known. [Id., at 557]....

“[A conclusion of harmless error] maybe appropriate [when] the defendant is on trial for an offense allegedly committed while he was in prison, because the jury would learn of his incarceration in any event.” (Citation omitted; emphasis added; internal quotation marks omitted.) Estelle v. Williams, supra, 425 U.S. at 507, 96 S.Ct. 1691.

I therefore conclude that the error that results by compelling a criminal defendant to appear in prison attire during trial will almost always rise to the level of an error of constitutional magnitude. Nevertheless, the prejudice that results from such an error is readily identifiable and reviewable on appeal, and, thus, the error properly is reviewed under harmless error analysis.

II

In order to determine whether the defendant's conviction should be reinstated, the state must demonstrate that the error in this case was harmless beyond a reasonable doubt. As the following discussion explains, I conclude that it was. In brief, the elements of the crime charged required the state to establish that the victim was a correction officer and was engaged in the line of duty. In other words, the state had to, and did, introduce evidence that would directly establish that the defendant was incarcerated when the crime occurred. Thus, if the defendant had not been clothed in prison attire, the jury would nonetheless have learned of the defendant's incarceration status. This aspect of the case, coupled with the copious and essentially uncontested evidence of the defendant's guilt, rendered the error harmless.

The jury was informed of the elements of the crime through the information, specifically, that it involved an offense committed against an on-duty correction officer with the intent to prevent the correction officer from fulfilling his duties. The jury heard testimony from the correction officer who was the alleged victim of the charged offense.

Nevertheless, I do not mean to imply that these circumstances justify the trial court's actions in the present case.

The standard of review for an error of constitutional magnitude is well settled. “Whether a constitutional violation is harmless in a particular case depends [on] the totality of the evidence presented at trial.... If the evidence may have had a tendency to influence the judgment of the jury, it cannot be considered harmless.” (Internal quotation marks omitted.) State v. Hedge, 297 Conn. 621, 654, 1 A.3d 1051 (2010). In such cases, the state bears the burden of proving that the error was harmless beyond a reasonable doubt. See, e.g., State v. Randolph, 284 Conn. 328, 377, 933 A.2d 1158 (2007).

There is no question that the state offered sufficient evidence to support the defendant's conviction. “The cumulative impact of the evidence in this case was sufficient for the jury to find beyond a reasonable doubt that the defendant was guilty of assault on a department [of correction] employee. There was evidence that Guerrera was in uniform at the time of the incident, that he was carrying out his lawful duty in an orderly manner, that the defendant knew Guerrera was a department [of correction] employee and that the defendant spat on Guerrera.... [S]pitting itself is a physical act, as it is the application of force to the victim's body.... Spitting on another person is almost universally acknowledged as contemptuous and is calculated to incite others to act in retaliation.... Also, it is irrelevant that Guerrera's duties as [a] cover down officer were essentially complete at the time of the assault because under [General Statutes (Sup.2006) ] § 53a–167c, [t]he [defendant's] act ... does not have to be wholly or partially successful ... [nor must it] be such as to defeat or delay the performance of a duty in which the officer is then engaged....

“[T]he jury reasonably could have found that when the defendant spat on Guerrera's face and chest, he intended not only that act, but also to prevent Guerrera from performing his duties.... [T]he evidence was sufficient for the jury to find beyond a reasonable doubt that the defendant had the specific intent to prevent Guerrera from performing his duty and, therefore, that the evidence was sufficient to support the conviction of assault of a department [of correction] employee.” (Citations omitted; internal quotation marks omitted.) State v. Rose, supra, 112 Conn.App. at 330–31, 963 A.2d 68.

Although evidence sufficient to sustain a conviction will not necessarily lead to a conclusion that the evidence was sufficient to render a trial error harmless, in this case, the state presented ample, independent and overwhelming evidence of the defendant's guilt. “There was uncontested documentary and testimonial evidence that ... Guerrera was an identifiable employee of the department of correction in the lawful performance of his duty when the assault took place. The state presented the testimony of two eyewitnesses to the assault on Guerrera. Each testified that the defendant spat on Guerrera during the removal of the damaged mattress from the defendant's cell. Also, there was ... extensive documentary evidence before the jury, [comprising] some sixty plus pages of department of correction reports, detailing the assault on Guerrera and subsequent events involving the defendant's incarceration.” Id., at 348–49 n. 6, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part); see State v. Yates, 174 Conn. 16, 18–19, 381 A.2d 536 (1977) (potential bias against defense witnesses testifying in prison attire was ameliorated by their own testimony regarding their incarceration); cf. State v. Pannone, 9 Conn.App. 111, 120, 516 A.2d 1359 (1986) (“[T]he defendant himself took the stand and admitted that he had been convicted during the year before the trial of a crime carrying a penalty of more than one year of imprisonment. This admission had the effect of nullifying any prejudicial influence [that] the court's action might have engendered [when it allowed uniformed correction officers to accompany the defendant during his trial].”), cert. denied, 202 Conn. 804, 519 A.2d 1208 (1987).

Specifically, Guerrera testified that he had been wearing an identifiable correction officer uniform, that Whiteley had informed the defendant that they were entering his cell to remove the mattress, and that they had been acting pursuant to their supervisor's orders. Guerrera also testified in great detail regarding the defendant's actions, specifically, the location of the officers within the defendant's cell and the defendant's position within the cell when he allegedly spat at Guerrera.
Guerrera reiterated his previous testimony in response to the defendant's questions on cross-examination. Additionally, Guerrera read into evidence, as a full exhibit, his statement to state police following the incident with the defendant, which included numerous references to the defendant's incarceration and referred to the defendant as “Inmate Rose....” The defendant also asked Guerrera if the defendant was in the custody of the department of correction when the charged offense occurred, to which Guerrera responded affirmatively. Guerrera, at the prompting of the defendant, read into the record a disciplinary report prepared after the defendant's spitting incident, which also referred to the defendant as “Inmate Rose....” Guerrera then explained that a disciplinary report functions as a means for an internal investigator to determine if the inmate has committed a crime or crimes.
The state's second witness, Whiteley, corroborated Guerrera's testimony regarding the defendant's actions. Notably, Whiteley's testimony included numerous references to the fact that the incident had occurred while the defendant was in a “cell” in a “prison facility....” Subsequently, the defendant also offered a previously prepared incident report to Whiteley, who read it aloud in front of the jury. Again, this report included numerous references the defendant as “Inmate Rose....”
The state's third and final witness, State Trooper Richard Henderson, testified that he had reported to an alleged incident between the defendant and Guerrera at a correctional center and that Guerrera was a correction officer.
In addition, the transcript of the defendant's trial reveals that the defendant engaged in extensive cross-examination of each of the state's witnesses. For example, the defendant's questioning of Whiteley concerned the specific, minute details of the incident and the accuracy of his memory. Reproduced in transcript form, this particular colloquy spans more than eight pages.

Lastly, the trial court instructed all jurors, as venire-persons during the jury selection process, not to consider the defendant's attire in deciding the case. Although it would have been preferable for the trial court to have repeated this instruction during its final charge, jurors are presumed to follow instructions given during voir dire in the absence of any indication to the contrary. See State v. Rodriguez, 210 Conn. 315, 332–33, 554 A.2d 1080 (1989).

Accordingly, although the trial court improperly compelled the defendant to appear before the jury in prison attire, that impropriety was rendered harmless by the overwhelming evidence presented by the state and by virtue of the elements of the charged crime. The judgment of the Appellate Court should be reversed, and the defendant's conviction should be reinstated.

III

Notwithstanding the foregoing facts, reasoning and analysis, the majority elects to uphold the Appellate Court's reversal of the defendant's conviction through the exercise of this court's inherent supervisory authority over the administration of justice. Rather than deciding whether the impropriety in this case properly is reviewed under harmless error analysis, the majority announces a rule that any conviction of a criminal defendant who was compelled to stand trial in identifiable prison clothing in violation of his or her constitutional rights will be reversible per se. The effect of this rule is to transform every constitutional error that results from compelling a defendant to stand trial in prison attire into structural error. I disagree with the majority's approach because it runs counter to this court's and the United States Supreme Court's principle that errors, even of constitutional magnitude, should be reviewed under a harmless error analysis unless such an analysis is not possible. Although the majority identifies the serious constitutional concerns that are implicated by requiring a defendant to appear in prison attire at trial, it does not explain why this type of error should trigger the exercise of our supervisory authority, instead of being subject to harmless error analysis. Thus, in my view, the majority fails to demonstrate why the concerns presented by the error in the present case justify departing from this court's long-standing view that we should invoke our supervisory authority only sparingly. See, e.g., State v. Wade, 297 Conn. 262, 296, 998 A.2d 1114 (2010) (“Our supervisory powers are not a last bastion of hope for every untenable appeal. They are an extraordinary remedy to be invoked only when circumstances are such that the issue at hand, while not rising to the level of a constitutional violation, is nonetheless of utmost seriousness, not only for the integrity of a particular trial but also for the perceived fairness of the judicial system as a whole.... Constitutional, statutory and procedural limitations are generally adequate to protect the rights of the defendant and the integrity of the judicial system. Our supervisory powers are invoked only in the rare circumstance [in which] these traditional protections are inadequate to ensure the fair and just administration of the courts.” [Emphasis added; internal quotation marks omitted.] ).

For that reason, the majority's reliance on our supervisory authority also runs counter to other jurisdictions that have considered this issue. See part I of this opinion. Indeed, I have not found, and the majority does not refer to, any jurisdiction that has determined that a defendant's compelled appearance at trial in prison attire should be reviewed under anything other than harmless error analysis. Nor am I aware of any jurisdiction that has invoked its own supervisory authority to craft the rule that the majority does in the present case.

Although the majority portrays the nature of the error in this case as uniquely worthy of per se reversal, I fail to comprehend how compelling a defendant to stand trial in prison attire is substantially different from compelling a defendant to appear shackled at trial without sufficient justification. In both situations, the jury is prejudiced by the constant reminder of the defendant's apparently criminal disposition. Indeed, shackling is arguably more prejudicial because the defendant not only may appear to be criminally predisposed but also more violent and dangerous. Nevertheless, this court never has held or suggested that improper shackling claims should not be subject to harmless error analysis. See State v. White, 229 Conn. 125, 145–46, 640 A.2d 572 (1994); State v. Canty, 223 Conn. 703, 719–20, 613 A.2d 1287 (1992); State v. Tweedy, 219 Conn. 489, 505–508, 594 A.2d 906 (1991). Moreover, the United States Supreme Court has endorsed harmless error review of improper shackling claims. See Deck v. Missouri, supra, 544 U.S. at 635, 125 S.Ct. 2007 (“[When] a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The [s]tate must prove beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.” [Internal quotation marks omitted.] ).

I also disagree with the majority's reasoning that a decision not to exercise our supervisory authority in the present case “would convey a most damaging message” to the public that this court does not value a criminal defendant's constitutional rights. The majority's reasoning, taken to its logical end, suggests that any error, even when harmless, should result in the reversal of a defendant's conviction if the nature of the error is one that implicates a constitutional right. Yet, harmless error analysis is routinely applied in the context of errors that implicate constitutional rights. See, e.g., State v. Mitchell, 296 Conn. 449, 459–60, 996 A.2d 251(2010) (harmless error analysis applies to admission into evidence of statements taken in violation of Miranda ). The majority, through its rationale for invoking this court's supervisory authority in this case, indirectly calls into question the appropriateness of reviewing any constitutional error under harmless error analysis. I therefore cannot join the majority's decision to rely on this court's supervisory authority and forgo harmless error analysis.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

Finally, I fail to see how upholding the reversal of the defendant's conviction in this case furthers the majority's stated goal of “send[ing] a strong message to the public that this court and the judiciary that it supervises accord the highest importance to basic fairness and to the presumption of innocence.” The state presented overwhelming evidence in this case of the defendant's guilt, and the defendant similarly offered evidence that would negate the harm that resulted from his being compelled to stand trial in prison attire. Thus, even if it is assumed, arguendo, that a categorical rule of reversibility is generally appropriate, the majority does not address why reversal is appropriate in this specific case. Put differently, although the majority raises concerns regarding the prejudicial effect of a defendant's appearance before a jury in prison attire, the majority does not identify any prejudice in the present case that would require the reversal of the defendant's conviction. I have faith that this court's determination that an error occurred in the present case is sufficient to put trial courts on notice that requiring a defendant to appear at trial in prison attire is unacceptable.We need not highlight, in my view, the trial court's error by relying on our supervisory authority and unnecessarily requiring the state to expend time and resources on a new trial for the defendant in order to cure an error that is undoubtedly harmless beyond a reasonable doubt. I therefore strongly disagree with the result that the majority reaches.

The majority contends that the state merely provided sufficient, but not overwhelming, evidence regarding the defendant's intent to prevent Guerrera from performing his duties. I disagree. In addition to the extensive testimony of Guerrera and the state's two other witnesses, which provided direct evidence that the defendant intentionally spat at Guerrera; see footnote 11 of this opinion; the jury had available to it “[a]n incident report that was entered into evidence as a full exhibit [that] detail[ed] effectively the surrounding circumstances and events leading [up] to and immediately following the incident. Just prior to the incident, the defendant ‘was naked in his cell due to [his] shoving his ... gown and blanket underneath the cell door [sometime earlier and] was ripping the seam of the mattress.’ This behavior led to the intervention by department of correction officers and the spitting incident.... After this incident, ‘[a]round ten minutes later, [the defendant] was pacing [in] his cell when suddenly he went to his cell door and started to urinate everywhere. A short time later ... [the defendant] wet some toilet paper and tried to cover the camera monitor.... [H]e then climbed up the wall and shook the camera trying to break it.... [H]e [then] grabbed the wet toilet paper, climbed ... up the wall again and placed it on the camera monitor.’ The report goes on to indicate that another department of correction intervention ensued resulting in the physical restraint of the defendant.” State v. Rose, supra, 112 Conn.App. at 348, 963 A.2d 68 ( Foti, J., concurring in part and dissenting in part).
The testimony of the officers and these circumstantial facts lead to the conclusion that the jury determined that the defendant spat at Guerrera intentionally. See, e.g., State v. Colon, 272 Conn. 106, 338, 864 A.2d 666 (2004) (“[i]t is axiomatic that a fact finder may infer intent from the natural consequences of one's voluntary conduct” [internal quotation marks omitted] ), cert. denied, 546 U.S. 848, 126 S.Ct. 102, 163 L.Ed.2d 116 (2005). In other words, the state's case was so strong that I can reasonably conclude that the jury reached this determination independently of any prejudice resulting from the defendant's appearance in prison attire. It also is worth noting that (1) the state's witnesses presented consistent testimony regarding the defendant's conduct, (2) the defendant did not testify or present any contradictory evidence, and (3) the defendant's trial strategy revolved almost entirely on attacking the credibility of the state's witnesses and other facts irrelevant to the charged crime. Thus, the only issue before the jury was whether to believe the state's witnesses and the exhibits offered by the state and the defendant, and the jury necessarily deemed those witnesses credible when it found the defendant guilty. I therefore disagree with the majority's contention that this is a difficult case in which to apply harmless error analysis.

The trial court committed an error of constitutional magnitude in the present case by compelling the defendant, over his objection, to appear at trial in prison attire. This error, however, is not structural and, thus, properly is reviewed under harmless error analysis. The state has met its burden of demonstrating beyond a reasonable doubt that, under the facts and circumstances of this case, the error was harmless. Nevertheless, the majority departs from our long-standing principle that we review trial errors, even errors of constitutional magnitude, under harmless error analysis. The majority instead invokes our sparingly used supervisory authority to establish a per se rule of reversibility and to uphold the reversal of the defendant's conviction. I believe this approach is unsupported by precedent and potentially damaging to the effectiveness of our judicial system. Accordingly, I respectfully dissent.

Summaries of

State v. Rose

Supreme Court of Connecticut.

Jul 10, 2012

305 Conn. 594 (Conn. 2012)

Summary of this case from In re Yasiel R.

adopting rule of per se reversal when defendant is compelled to stand trial in prison garb

Summary of this case from State v. Elson

declining to consider whether it is structural constitutional error to require defendant to stand trial in identifiable prison clothing after resolving case under supervisory authority

Summary of this case from State v. Dickson

declining to consider whether it is structural constitutional error to require defendant to stand trial in identifiable prison clothing after resolving case under supervisory authority

Summary of this case from State v. Dickson

noting that “unlike most other constitutional errors, compelling a defendant to stand trial in identifiable prison clothing is not just highly demeaning but also potentially highly prejudicial in a manner the effects of which may be very difficult to measure because they involve a subtle but ever present cognitive bias”

Summary of this case from State v. Elson

stating that “ill effects of a defendant's compelled appearance in prison clothing being very difficult to measure, we are loath to engage in ... harmless error analysis”

Summary of this case from State v. Elson

utilizing supervisory power to adopt rule “that the conviction of a defendant who is compelled to stand trial in identifiable prison clothing in violation of his or her constitutional rights is reversible per se”

Summary of this case from State v. Elson

forcing defendant to stand trial in prison garb requires reversal per se

Summary of this case from State v. Medrano

In Rose, our Supreme Court granted the state's petition for certification to appeal from this court's decision to reverse a criminal conviction in which the trial court had compelled the defendant to appear for trial in identifiable prison clothing.

Summary of this case from State v. Simmons

In State v. Rose, supra, 305 Conn. at 607–14, 46 A.3d 146, our Supreme Court exercised its supervisory powers to reverse the conviction of a defendant and order a new trial because the trial court had compelled the defendant to wear identifiable prison clothing during his jury trial.

Summary of this case from State v. Simmons

emphasizing well-settled view that supervisory authority is an extraordinary remedy to be exercised sparingly

Summary of this case from State v. Fuller

State v. Rose

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Opinion

I

II

III

State v. Rose

State v. Rose

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State v. Rose

Summary

Opinion

I

II

III

State v. Rose

State v. Rose

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