{ "id": 6138934, "name": "Karsten CANNON v. STATE of Arkansas", "name_abbreviation": "Cannon v. State", "decision_date": "1997-07-02", "docket_number": "CA CR 96-1018", "first_page": "182", "last_page": "194", "citations": [ { "type": "official", "cite": "58 Ark. App. 182" }, { "type": "parallel", "cite": "947 S.W.2d 409" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "255 Ark. 272", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8719750 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "274" }, { "page": "852" } ], "opinion_index": 0, "case_paths": [ "/ark/255/0272-01" ] }, { "cite": "435 U.S. 475", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 2258 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/us/435/0475-01" ] }, { "cite": "260 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1616725 ], "weight": 2, "year": 1976, "opinion_index": 0, "case_paths": [ "/ark/260/0250-01" ] }, { "cite": "425 U.S. 501", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179579 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/us/425/0501-01" ] }, { "cite": "6 Ark. App. 23", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136495 ], "weight": 5, "year": 1982, "pin_cites": [ { "parenthetical": "citing Estelle v. Williams, 425 U.S. 501 (1976)" }, { "parenthetical": "citing Estelle v. Williams, 425 U.S. 501 (1976)" }, { "parenthetical": "noting that from the record it was not clear that defendant's orange jumpsuit was distinctive as jail attire" }, { "parenthetical": "noting that from the record it was not clear that defendant's orange jumpsuit was distinctive as jail attire" } ], "opinion_index": 0, "case_paths": [ "/ark-app/6/0023-01" ] }, { "cite": "52 Ark. App. 184", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139634 ], "weight": 2, "year": 1996, "opinion_index": 0, "case_paths": [ "/ark-app/52/0184-01" ] }, { "cite": "320 Ark. 250", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451256 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0250-01" ] }, { "cite": "49 Ark. App. 16", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136191 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/49/0016-01" ] }, { "cite": "325 Ark. 36", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369181 ], "weight": 3, "year": 1996, "pin_cites": [ { "parenthetical": "holding an abstract that did not include several pleadings, including the jury verdict, the judgment and commitment order, and the notice of appeal insufficient" }, { "parenthetical": "holding an abstract that did not include several pleadings, including the jury verdict, the judgment and commitment order, and the notice of appeal insufficient" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0036-01" ] }, { "cite": "327 Ark. 153", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 922849 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/327/0153-01" ] }, { "cite": "328 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50341 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ark/328/0487-01" ] }, { "cite": "316 Ark. 553", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1907779 ], "weight": 2, "year": 1994, "opinion_index": 0, "case_paths": [ "/ark/316/0553-01" ] }, { "cite": "920 S.W.2d 843", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9160131 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0328-01" ] }, { "cite": "324 Ark. 322", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 9160025 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/ark/324/0322-01" ] }, { "cite": "322 Ark. 437", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1447564 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/322/0437-01" ] }, { "cite": "325 Ark. 313", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 369147 ], "weight": 4, "year": 1996, "pin_cites": [ { "page": "160" } ], "opinion_index": 0, "case_paths": [ "/ark/325/0313-01" ] }, { "cite": "283 Ark. 435", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1879969 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/283/0435-01" ] }, { "cite": "425 U.S. 504", "category": "reporters:federal", "reporter": "U.S.", "opinion_index": 1 }, { "cite": "249 Ark. 6", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717399 ], "opinion_index": 1, "case_paths": [ "/ark/249/0006-01" ] }, { "cite": "249 Ark. 3", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8717372 ], "weight": 2, "year": 1970, "opinion_index": 1, "case_paths": [ "/ark/249/0003-01" ] }, { "cite": "425 U.S. 501", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6179579 ], "weight": 7, "year": 1976, "pin_cites": [ { "page": "505" }, { "page": "505" } ], "opinion_index": 1, "case_paths": [ "/us/425/0501-01" ] }, { "cite": "328 Ark. 487", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50341 ], "weight": 2, "year": 1997, "opinion_index": 1, "case_paths": [ "/ark/328/0487-01" ] } ], "analysis": { "cardinality": 1009, "char_count": 25158, "ocr_confidence": 0.723, "pagerank": { "raw": 9.568998697570791e-08, "percentile": 0.525613076283598 }, "sha256": "e2af258f16094b751d9e019e2bc6f2c545dbf711c15852423b2adf67e921128f", "simhash": "1:5baa2d86d1eed100", "word_count": 4237 }, "last_updated": "2023-07-14T22:49:00.217253+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Stroud and Meads, JJ., agree.", "Neal, Griffen, and Roaf, JJ., dissent." ], "parties": [ "Karsten CANNON v. STATE of Arkansas" ], "opinions": [ { "text": "Terry Crabtree, Judge.\nAppellant Karsten Cannon appeals his conviction of delivery of a controlled substance for which he was sentenced to 240 months\u2019 incarceration. On appeal, appellant argues that the judgment should be reversed because he was forced to appear in court in prison garb, because the trial court admitted a lab report in violation of the controlling statute, and because the evidence was insufficient to support the verdict.\nWe affirm the judgment on the basis that appellant\u2019s abstract is flagrantly deficient. Appellant did not abstract the judgment and commitment order, the jury\u2019s verdict, the sentencing before the court, or the notice of appeal. One must go to the record to determine of what crime appellant was convicted and whether he timely filed a notice of appeal. Pursuant to Ark. R. Sup. Ct. 4-2(a)(6) and case law interpreting the rule, appellant\u2019s abstract is inadequate for us to reach the merits of his appeal. The following language from King v. State, 325 Ark. 313, 925 S.W.2d 159 (1996), is informative on the effect of faffing to abstract pertinent pleadings:\nWe have often held that a summary of the pleadings and the judgment appealed from are the bare essentials of an abstract. D. Hawkins, Inc. v. Schumacher, 322 Ark. 437, 909 S.W.2d 640 (1995). This court does not presume error simply because an appeal is made. Mayo v. State, 324 Ark. 322, 920 S.W.2d 843 (1996). It is the appellant\u2019s burden to produce a record sufficient to demonstrate error, and the record on appeal is confined to that which is abstracted. Midgett v. State, 316 Ark. 553, 873 S.W.2d 165 (1994).\nId. at 315, 925 S.W.2d at 160.\nWe are aware of the recent decision by the Supreme Court, Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997), in which the appellants failed to abstract the judgment and commitment order, and the supreme court still chose to address the merits. In Williams, the court stated:\nWe choose not to declare Mr. Williams\u2019s abstract \u201cflagrandy deficient.\u201d Except for the omission of the judgment and commitment order, the abstract is complete and exemplary. We know from his uncontested statement of the case that Mr. Williams was convicted of conspiracy to deliver methamphetamine and that he was sentenced to thirty years\u2019 imprisonment for that offense. We are aware that in other cases, such as the recent decision in Jewell v. Miller County Election Comm\u2019n, 327 Ark. 153, 936 S.W.2d 754 (1997), we have declined to look to other parts of a brief or abstract to find information that should have been included elsewhere. That, however, was a case in which we were given a nine-page abstract to depict a 1500-page record and six volumes of exhibits. Even in the case of Winters v. Elders, supra, where we declared an abstract of the judgment \u201cessential,\u201d we had an additional reason for affirmance based on incompleteness of the record. While an abstract of the judgment from which the appeal comes is \u201cordinarily\u201d required, its absence does not necessarily constitute a flagrant deficiency requiring affirmance, and it does not in this case.\nId. at 490, 944 S.W.2d at 824.\nUnlike the appellant in Williams, appellant in the present case failed to abstract more than just the judgment and commitment order. The only pleading in the abstract is the information charging appellant. Also, in the case at bar, the statement of the case does not provide the crime of which appellant was convicted. And, the notice of appeal is not abstracted. See Davis v. State, 325 Ark. 36, 924 S.W.2d 452 (1996) (holding an abstract that did not include several pleadings, including the jury verdict, the judgment and commitment order, and the notice of appeal insufficient).\nThe dissenting opinion states that appellant\u2019s conviction as evidenced by the judgment and commitment order, the timeliness of his appeal, and circumstances of his sentencing are not issues on appeal and, therefore, not necessary components of the abstract. This line of reasoning ignores the fact that the timely filing of a notice of appeal is a jurisdictional requirement. Henry v. State, 49 Ark. App. 16, 894 S.W.2d 610 (1995). Absent an effective notice of appeal, this court lacks jurisdiction to consider the appeal and must dismiss it. Id. See also Parnell v. State, 320 Ark. 250, 895 S.W.2d 911 (1995); Schaeffer v. City of Russellville, 52 Ark. App. 184, 916 S.W.2d 134 (1996). Therefore, whether appellant filed an effective notice of appeal is always an issue before the appellate court.\nThe dissenting opinion also reasons that this court can address appellant\u2019s argument that he should not have been required to appear for trial in prison attire when he and his attorney failed to obtain civilian clothing prior to the morning of trial. The basis of this argument is that the abstract contains the arguments before the trial court concerning the clothing and the references to appellant\u2019s attire as \u201cjail garb,\u201d \u201cprison garb,\u201d and \u201cjail uniform.\u201d The error in this reasoning is that, although the abstract contains the references to appellant\u2019s clothing as prison attire, there is no description of that attire showing that it is distinctive as prison garb.\nWhile it is generally true that a defendant should not be forced to appear for trial in prison attire and that this rule is founded on the principle that, since a defendant is presumed innocent until proven guilty, he should be allowed to appear before the jury with the appearance of an innocent man, for this rule to apply, the clothing or attire must be distinctive as prison garb. Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (citing Estelle v. Williams, 425 U.S. 501 (1976)). See also Holloway v. State, 260 Ark. 250, 539 S.W.2d 435 (1976), rev\u2019d on other grounds, 435 U.S. 475 (1978). In the present case, there is no description of the jail attire that appellant wore at trial. This precludes appellant from prevailing on this issue on appeal. In Barksdale v. State, 255 Ark. 272, 499 S.W.2d 851 (1973), the supreme court explained:\nThe court properly denied appellant\u2019s motion for a mistrial on the grounds that he was wearing prison garb. The record shows that appellant was wearing bell-bottom white trousers, a gold shirt, a white and brown striped jacket, and house shoes. There is no evidence of any name or number on the apparel. Nor do we find any merit in the allegation that appellant was brought handcuffed in full view of the jury.\nId. at 274, 499 S.W.2d at 852. See also Washington v. State, 6 Ark. App. 23, 637 S.W.2d 614 (1982) (noting that from the record it was not clear that defendant\u2019s orange jumpsuit was distinctive as jail attire).\nIn the present case, we have no description of appellant\u2019s prison attire whatsoever. There is no evidence that his clothing had a name, number, or other indicia of prison attire. Therefore, this court does not have a basis upon which to determine that appellant\u2019s prison attire was distinctive as such, which is essential to appellant\u2019s argument on this point. See Washington, supra.\nApplying the well-established rules that were reiterated in King, supra, and Davis, supra, the abstract in the present case is flagrantly deficient. However, if we were to reach the merits of appellant\u2019s arguments, based on what we have been provided in the abstract, we would affirm.\nAffirmed.\nStroud and Meads, JJ., agree.\nNeal, Griffen, and Roaf, JJ., dissent.", "type": "majority", "author": "Terry Crabtree, Judge." }, { "text": "Wendell L. Griffen, Judge,\ndissenting. I dissent from the decision announced in the prevailing opinion that affirms the trial court\u2019s disregard of appellant\u2019s timely and uncontested objection to being brought to trial wearing prison clothing based on what the prevailing opinion has termed an abstracting error. Contrary to the view stated in the prevailing opinion, the appellant has produced an abstract that clearly demonstrates that the trial judge acknowledged that appellant was wearing \u201cjail garb,\u201d and that his lawyer had indicated that he did not want the appellant to appear before the jury so dressed. The abstract also demonstrates that the trial judge later stated that he would hold appellant\u2019s counsel in contempt for refusing to bring appellant to trial in what counsel termed \u201chis prison garb.\u201d The abstract reveals that after the jury was impaneled, the trial judge mentioned to appellant\u2019s counsel during a sidebar conference that he (the judge) noticed that appellant was still wearing \u201ca jail uniform.\u201d Nothing in the abstract or the record disputes appellant\u2019s assertion that he was wearing clothing that plainly identified him as a member of a prison population, and the State never disputed appellant\u2019s characterization of his attire before the trial judge. Thus, there is no justification for the conclusion urged by the State and reached in the prevailing opinion, that appellant either failed to preserve the trial court\u2019s blatant error or filed a flagrantly defective abstract, that prevents us from understanding the issue presented for appellate review.\nFor almost twenty-seven years, Arkansas courts have recognized that a person accused of committing a crime should not be forced to stand trial in prison clothing absent a waiver. Our supreme court issued that ruling in Miller v. State, 249 Ark. 3, 457 S.W.2d 848 (1970). The United States Supreme Court reached the same conclusion twenty-one years ago in Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). In Miller, our supreme court reversed the appellant\u2019s robbery conviction based upon his contention that he was forced to trial in prison garb after being denied the opportunity to obtain civilian clothing, and issued the following statement as its reason for joining the strong majority rule that absent a waiver an accused person should not be forced to trial in prison garb:\nSince the defendant, pending and during the trial, is still presumed innocent, he is entided to be brought before the court with the appearance, dignity, and self-respect of a free and innocent man, except as the necessary safety and decorum of the court may otherwise require. He is therefore entitled to wear civilian clothes rather than prison clothing at his trial. It is improper to bring him into the presence of the jury which is to try him, or the venire from which his trial jury will be drawn, clothed as a convict.\nId. at 249 Ark. 6, quoting 21 Am. Jur. 2d Criminal Law, \u00a7 239.\nAs the Supreme Court of the United States observed in Estelle v. Williams, supra, the constant reminder of the accused\u2019s condition may affect a juror\u2019s judgment. \u201cThe defendant\u2019s clothing is so likely to be a continuing influence throughout the trial that, not unlike placing a jury in the custody of deputy sheriffs who were also witnesses for the prosecution, an unacceptable risk is presented of impermissible factors coming into play.\u201d 425 U.S. at 505. The Supreme Court observed that compelling an accused to wear jail clothing furthers no essential state policy, and the fact that it may be more convenient for jail administrators provides no justification for the practice. Id. at 505. The Court also termed \u201ctroubling\u201d the fact that compelling the accused to stand trial in jail garb operates usually against only those who cannot post bail prior to trial. Id. Based on its view of these factors and their impact on the right of persons accused of crime to a fair trial, and the fact that the presumption of innocence is \u201ca basic component of a fair trial under our system of criminal justice,\u201d the Court concluded in Estelle v. Williams that although the State cannot compel an accused to stand trial before a jury while dressed in identifiable prison clothes, the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is sufficient to negate the presence of compulsion necessary to establish a constitutional violation under the due process clause of the Fourteenth Amendment to the Constitution of the United States.\nThe prevailing opinion ignores these fundamental realities as well as the undisputed portions of the abstract that have been offered in support of appellant\u2019s challenge to his conviction. If the fact of appellant\u2019s conviction, the timeliness of his appeal, or the circumstances of his sentencing were issues raised in this appeal, the absence of the judgment and commitment order, appellant\u2019s sentencing in the trial court, and the notice of appeal, would constitute defects so that the position stated in the prevailing opinion might have merit. The truth is that these are not the issues raised in the appeal. To focus on them is to study the irrelevant and disregard an essential issue presented for appellate review.\nIt is especially revealing that the prevailing opinion has seized on appellant\u2019s failure to abstract the notice of appeal in an effort to justify affirming a flagrant constitutional violation by the trial court. The prevailing opinion correctly states that the timely filing of a notice of appeal is a jurisdictional requisite for appellate review, as if the timeliness of appellant\u2019s appeal is in question. The plain truth is that nobody has ever questioned the timeliness of the appeal. Furthermore, the proponents of the prevailing opinion do not argue that failure to abstract a notice of appeal has ever been held to mean that an appeal is not timely. Nevertheless, they have rushed to press this flimsy reason in order to affirm. The flimsiness of their reason is obvious. In the first place, appellant\u2019s appeal was filed on time. Nobody has ever denied this fact, and no amount of mental sleight-of-hand can establish otherwise. Beyond that, however, there is plain and profound difference between lack of jurisdiction to hear an appeal because it is not timely, and a timely appeal that has an incomplete abstract. Rule 4-2 governing the contents of briefs filed in appeals in Arkansas plainly provides that motions to dismiss an appeal for insufficiency of the appellant\u2019s abstract will not be recognized. Rule 4-2(b). If an appeal is untimely, we must dismiss it for lack of jurisdiction, not summarily affirm the result below. The reason we cannot summarily affirm an untimely appeal is because we have no jurisdiction to consider it in the first place. The prevailing opinion ignores this basic reality in the effort to justify the abuse of appellant\u2019s right to a fair trial.\nBut since the prevailing opinion has relied upon what it considers flagrant deficiencies in appellant\u2019s abstract, I am obliged to refer to Rule 4-2(b) to demonstrate that the rule requires a reasoning process that the proponents of the prevailing opinion have refused to undertake. Rule 4-2(b)(l) provides that if the appellee considers the appellant\u2019s abstract to be defective, the appellee\u2019s brief may call the deficiencies to the Court\u2019s attention and may, at the appellee\u2019s option, contain a supplemental abstract. Rifle 4-2(b)(2) then provides as follows:\nWhether or not the appellee has called attention to deficiencies in the appellant\u2019s abstract, the Court may treat the question when the case is submitted on the merits. If the Court finds the abstract to be flagrantly deficient, or to cause an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the Court considers that action to be unduly harsh, the appellant\u2019s attorney may be allowed time to revise the brief, at his or her own expense, to conform to Rule 4-2(a)(6). (Emphasis added.)\nI can think of nothing more \u201cunduly\u201d harsh to someone whose right to a fair trial has been violated by being compelled to wear prison clothing before the jury than for his appeal to be summarily affirmed on account of an abstracting error. The prevailing opinion does not mention the harshness of summary affirmance because its proponents have not addressed its harshness due to what I consider extraordinary reluctance to address appellant\u2019s fair trial argument on its merits. When one understands the flagrant fallacy of linking appellant\u2019s failure to abstract the notice of appeal to the nonexistent issue of whether the notice of appeal was timely so as to deprive us of jurisdiction to even address an abstracting deficiency, the prevailing opinion\u2019s effort to justify affirming the trial court on account of purported abstracting errors must be seen as sorrowful at its best, outrageous at its worst. That the prevailing opinion cites the Supreme Court\u2019s recent decision in Williams v. State, 328 Ark. 487, 944 S.W.2d 822 (1997), and nevertheless concluded that affirmance is mandated makes this decision especially brazen.\nThe members of our court who join in the prevailing opinion have also indicated that they would affirm even if they were to reach the merits of appellant\u2019s argument. Although the State claims that appellant was not compelled to stand trial wearing prison garb, the abstract that the prevailing opinion has chosen to disregard plainly shows that the trial judge remarked with apparent displeasure that the appellant\u2019s appointed counsel had objected to being tried wearing the prison clothing. After that objection was made, the following exchange occurred between the trial judge and appellant\u2019s counsel:\nMR. GINN: Your Honor, you just instructed me to go and get him [appellant] out of the hallway and bring him here in his prison garb. If I refuse to do that, will I be held in contempt?\nTHE COURT: Yes, sir, you sure will.\nMR. GINN: In that case, Your Honor, I\u2019m gonna follow the Court\u2019s instruction only under the threat of jail or other punishment for contempt.\nTHE COURT: That\u2019s fine. That\u2019s the way it\u2019s going to have to be. It is now a couple of minutes past ten.\nMR. GINN: I object to my being forced to do this. I object to the fact that he has to be brought in his prison clothes and my going to get him \u2014 I don\u2019t want that construed that I am agreeing with the Court.\nAfter court convened the abstract shows that the following exchange occurred:\nTHE COURT: Court will be in session. Show on the record that it\u2019s 10:20. Today\u2019s case is the State of Arkansas versus Kar-sten Cannon. How says the State?\nMR. FAIRLEY (counsel for the prosecution): The State is ready, your Honor.\nTHE COURT: How says the defense?\nMR. GINN: The defense is ready, save for the objections made earlier.\nTHE COURT: All right, that objection\u2019s already been noted and the Court\u2019s ruled on it.\nFollowing jury selection and lunch, the following sidebar exchange occurred:\nTHE COURT: Mr. Ginn, it is now one o\u2019clock and I notice he\u2019s still wearing a jail uniform. Did his family not come up here with a change of clothes?\nMR. GINN: Apparendy not.\nTHE COURT: I want the record to reflect that we had a recess and it is still not here and there\u2019s no assurance that it would ever be here. I just don\u2019t want it to happen again.\nMR. GINN: For the record, if the Court had allowed us, we would have gone out to Wal-Mart and gotten him some clothes.\nTHE COURT: That should have been done yesterday \u2014 if it is any big deal \u2014 which I don\u2019t think it is.\nMR. GINN: As far as whether or not we would have gotten him any now during lunch, I don\u2019t see there\u2019s any use. He\u2019s already been paraded in front of the jury.\nTHE COURT: That may be true, but I want it in the record that they\u2019ve had ample opportunity and it still hasn\u2019t been here yet.\nThis series of comments between the trial judge and appellant\u2019s appointed counsel disproves the State\u2019s argument that appellant was not \u201ccompelled\u201d to wear jail clothing.\nThe State also argues that appellant failed to show that he was prejudiced by appearing before the jury in prison garb. Aside from conceding that appellant did appear before the jury in prison garb (as appellant\u2019s abstract plainly shows), this argument has already been rejected by the holdings in Estelle v. Williams, Miller v. State, and a host of other decisions. The right to a fair trial does not depend on whether the person exercising it can show that it is violated by wearing prison clothing. As our supreme court observed in Miller v. State, absent a waiver, the law holds that an accused person should not be forced to stand trial in prison garb. Requiring that one do so is prejudicial to the right to fair trial in itself, without additional proof of harm, because of the possible impairment of the presumption of innocence that is so basic to our criminal justice system. Estelle v. Williams, supra, 425 U.S. 504. The prevailing opinion does not indicate how its proponents have been able to dismiss this principle in favor of the long-rejected position asserted by the State.\nThe State also claims that appellant\u2019s objection was untimely. If this is the reason that the proponents of the prevailing opinion have voted to affirm, then it is both inaccurate and ironic. Its inaccuracy arises from the fact that appellant\u2019s objection to being tried in prison attire was made out of the presence of the potential jurors and to the trial court before trial began. This case is different from Young v. State, 283 Ark. 435, 678 S.W.2d 329 (1984), where our supreme court affirmed a trial court\u2019s denial of an appellant\u2019s motion for mistrial based on the fact that he stood trial wearing prison garb because the objection was not raised until after the jury was seated. In the case before us, no jury had been impaneled, voir dire had not commenced, and appellant had not been presented to the trial court when his counsel objected.\nFurthermore, it is ironic that the State argues that appellant\u2019s objection was untimely if this is the basis for the view taken by the proponents of the prevailing opinion that they would affirm if they dealt with this appeal on the merits. The irony lies in the fact that the State never contended before the trial court that appellant\u2019s objection was untimely. The State has not presented us with a supplemental abstract containing the argument that it resisted appellant\u2019s objection as untimely before the trial court. As far as the record is concerned, the State\u2019s claim of untimeliness is being raised for the first time in response to appellant\u2019s appeal. I find it both ironic and more than slightly unfair that an appeal involving plain proof of a constitutional violation is being denied on an alleged abstracting error by decision-makers who contend that if they addressed the appeal on its merits, they would reach the same result by disregarding our own principle of not considering arguments raised for the first time on appeal.\nWhether it would have been smart trial strategy to present appellant for trial wearing the same garments that he wore when he was arrested is beside the point. Appellant had a right to wear civilian clothing during his trial. If he chose to be tried wearing civilian clothing that made him easier to be identified by the police officers who arrested him for sale of a controlled substance, that was his choice to make. The right to appear for trial in civilian clothes carries with it the freedom to unwisely select one\u2019s clothes, and the fact that appellant might have made an unsound choice does not justify denying his right to wear civilian clothes at all.\nFinally, it is amazing that the prevailing opinion acknowledges that a defendant should not be forced to trial wearing prison attire based on the principle that doing so would impermissibly contradict the presumption that one is innocent until proven guilty, yet reasons that appellant\u2019s challenge to the trial court\u2019s action compelling him to stand trial in what the trial judge plainly called \u201ca jail uniform\u201d is unpersuasive because appellant failed to prove that the jail uniform was distinctive. What makes that rea-sorting amazing is that one would ordinarily think that appellate judges would respect the basic intelligence of a trial judge enough to believe that the judge knew a jail uniform when he said that he saw one, and that we would respect the integrity of the trial judge enough to at least not implicitly question whether he actually saw somebody wearing a jail uniform in the middle of a trial when he said that he saw it on the record. If this appeal did not involve something as fundamental and serious as the cherished right to a fair trial then the prevailing opinion\u2019s assertion that appellant failed to establish that his clothing distinguished him as a member of a prison population after the trial judge said that he saw appellant sitting in the courtroom wearing \u201ca jail uniform\u201d would be as amusing as it is amazing. However, there is nothing funny about being denied a fair trial, no matter how absurd the reasons may be for affirming that denial.\nFor these reasons, I respectfully dissent from the result announced by the prevailing opinion. Instead of affirming the result below, I would reverse appellant\u2019s conviction and remand his case for a new trial.\nI am authorized to state that Judges Neal and Roaf join in this opinion.", "type": "dissent", "author": "Wendell L. Griffen, Judge," } ], "attorneys": [ "Thimothy A. Ginn, for appellant.", "Winston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Karsten CANNON v. STATE of Arkansas\nCA CR 96-1018\n947 S.W.2d 409\nCourt of Appeals of Arkansas Divisions I and IV\nOpinion delivered July 2, 1997\nThimothy A. Ginn, for appellant.\nWinston Bryant, Att\u2019y Gen., by: Sandy Moll, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0182-01", "first_page_order": 210, "last_page_order": 222 }