* State Of Washington, Respondent V. Terry Joel Caver, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
Respondent,
v.
TERRY JOEL CAVER,
Appellant.
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No. 73761-9-1
DIVISION ONE
PUBLISHED OPINION
FILED: September6, 2016
Leach, 	J. 	— 	Terry 	Caver 	appeals 	his 	conviction 	for 	possession 	of
methamphetamine. 	He contends that the trial court violated his constitutional
right to a fair trial when it denied his request to wear jail clothes at trial. 	Also, he
challenges the trial court's exclusion of detailed testimony about his attempts to
obtain drug treatment in jail after his arrest. 	Finally, he requests that if the State
prevails in this appeal, this court decline to award it costs. 	Because wearing
civilian clothes at trial does not inherently prejudice a defendant, ordering Caver
to wear them does not implicate his constitutional rights. 	And because the trial
court had reasonable grounds to deny Caver's request to wear jail clothes, the
trial court did 	not abuse its discretion 	in doing so. 	Caver's attempts to get
treatment in jail are not relevant to any issue at trial. 	The trial court did not abuse
its discretion by excluding testimony about those attempts. 	And because Caver
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 73761-9-1/2
is only 53 years old, was sentenced to only 90 days in jail, and can petition the
trial court for relief if he continues to be unable to pay the costs, we decline
Caver's request that we deny appellate costs to the State. We affirm.
FACTS
On 	May 13, 2015, Terry Caver called 911 	and asked to be taken for
treatment 	because he "was having a 	mental breakdown." 	He was 	high 	on
methamphetamine (meth).
Two police officers responded. 	They found Caver as he left the Everett
Foot Clinic, where he had gone for help. 	Caver had his hands in his jacket
pockets. 	He appeared afraid and paranoid. 	One of the officers ordered Caver to
remove his hands from his pockets. When he did so, he held an open pocket
knife. 	He dropped the knife when the police asked him to. 	The officers then
detained Caver and frisked him for weapons. 	During the frisk, Officer Timothy
O'Hara felt what he recognized to be a meth pipe. 	The officers arrested Caver.
In a search incident to this arrest, they found a "baggie" containing a small
amount of meth.
Caver asked the officers to take him to triage for mental health and drug
abuse treatment instead of jail. 	The officers booked him into Snohomish County
Jail. 	Officer O'Hara explained at trial that they did so because the jail has
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NO. 73761-9-1/3
available 	mental 	health 	professionals and 	separate 	housing 	for inmates with
mental health issues.
Caver remained in custody when his trial began two months later. 	At the
start of trial, he asked the trial court for permission to wear his jail clothes in front
of the jury. 	He explained that the clothes "represent that I'm in here, that I'm not
on the street. 	It represents] what's really going on in my life. 	I don't want these
people thinking that I'm on the streets when I'm not on the streets."1 	The trial
court 	denied 	Caver's 	request, 	stating 	that 	"it 	causes 	much 	mischief 	if the
defendant is clothed 	in regular jail garb." 	The court explained to Caver that
wearing jail clothes would cause the jury to speculate about why he was in jail
and whether he posed a danger to them.
Before trial, the State asked the court to exclude evidence that Caver
requested treatment rather than incarceration. 	It argued this evidence was not
relevant to whether Caver knowingly possessed drugs and would merely create
sympathy for Caver. 	Caver responded that the statements were relevant for his
unwitting possession defense, which posited that he would not have called 911 if
he knew he had meth in his pocket. 	The trial court initially indicated it would
exclude evidence about Caver's requests 	and 	about the 	available drug and
mental health treatment in jail, seeing both topics as irrelevant. 	After further
1 Caver's trial counsel told the court that she had instructed Caver to dress
in civilian clothes.
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NO. 73761-9-1/4
argument, 	though, the 	trial 	court reversed 	itself and 	allowed both types 	of
evidence.
The trial court did not exclude either category of evidence during Officer
O'Hara's testimony. 	O'Hara described a "triage" facility, which treats people who
have mental health issues or are under the influence of drugs. 	He acknowledged
that Caver requested several times to go to a triage facility. 	Then he described
Snohomish County Jail's mental health and treatment facilities and services.
Caver testified that he had tried unsuccessfully to get treatment in jail. 	He
said that he had given up because the line was long and he was also waiting for
a bed. 	The trial court sustained an objection to Caver's further testimony about
his attempts to get treatment, ruling that testimony irrelevant.
The jury found Caver guilty of one count of methamphetamine possession.
Caver appeals.
ANALYSIS
Request To Wear Jail Clothes
First, Caver contends that the trial court violated his due process rights by
not allowing him to wear jail clothes at trial.
The right to a fair trial entitles a defendant to appear "free from all bonds
or shackles except in extraordinary circumstances."2 A defendant has the right
2 State v. Finch, 137 Wn.2d 792, 842-43, 975 P.2d 967 (1999).
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NO. 73761-9-1/5
not to appear in jail or prison clothing.3 	These rights stem from the defendant's
presumption of innocence and a right to be free from 	measures that unfairly
prejudice the jury.4 Contrary to Caver's apparent argument, they do not include a
broad freedom for the defendant to express himself through his dress.
When a defendant challenges a trial management decision, we normally
review the decision for abuse of discretion.5 	When the decision is "inherently
prejudicial," we scrutinize it closely, asking if it was "necessary to further an
essential state interest."6 To determine if a courtroom arrangement is "'inherently
prejudicial,'" 	we 	ask 	if 	it 	presents 	"'an 	unacceptable 	risk'" 	of 	bringing
"'impermissible factors'" into play.7 	This risk comes from "'the wider range of
inferences that a juror might reasonably draw'" from the arrangement.8 	We use
"reason, principle, and common human experience" to evaluate the likely effects
of a measure on a juror's judgment.9
3 Estelle v. Williams, 425 U.S. 501, 504-05, 96 S. Ct. 1691, 48 L. Ed. 2d
126(1976).
4 Finch, 137 Wn.2d at 844-45.
5 State v. Jaime, 168 Wn.2d 857, 865, 233 P.3d 554 (2010).
6 Finch, 137 Wn.2d at 846 (quoting Estelle, 425 U.S. at 504).
7 Jaime, 168 Wn.2d at 862 (quoting In re Pers. Restraint of Woods, 154
Wn.2d 400, 417, 114 P.3d 607 (2005)).
8 Jaime, 168 Wn.2d at 862 (quoting Holbrook v. Flvnn, 475 U.S. 560, 569,
106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986)).
9 Estelle, 425 U.S. at 504.
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NO. 73761-9-1/6
Compelling a defendant to stand trial before a jury in identifiable prison
clothes10 	or in bonds or shackles11 	is inherently prejudicial for four 	reasons.
These 	measures 	erode 	the 	presumption 	of 	innocence, 	which 	entitles 	the
defendant to be "brought before the court with the appearance, dignity, and self-
respect of a free and innocent man."12 	They single out the defendant "as a
particularly dangerous or guilty person" and show "the need to separate [the]
defendant from the community at large."13 	They offend the dignity of the judicial
process.14 And shackles restrict a defendant's ability to assist counsel and testify
on the defendant's own behalf.15
A trial court raises none of these concerns when it directs a defendant not
to dress in jail clothing. 	In State v. Gilcrist,16 the Supreme Court rejected the
argument that the trial court violated the defendants' rights by requiring them to
wear state-provided civilian clothes. 	It distinguished Estelle v. Williams,17 where
the defendant "'appeared at trial in clothes that were distinctly marked as prison
10 Estelle, 425 U.S. at 504-05.
11 Finch, 137Wn.2dat842.
12 Finch, 137Wn.2dat844.
13 Finch, 137 Wn.2d at 845 (quoting Holbrook, 475 U.S. at 568-69).
14 Finch, 137 Wn.2d at 845 (holding trial court abused its discretion in
allowing defendant to be shackled during trial and sentencing).
15 Finch, 137Wn.2dat845.
16 91 Wn.2d 603, 610, 590 P.2d 809 (1979); see also State v. Stevens, 35
Wn. App. 68, 71-72, 665 P.2d 426 (1983).
17 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126(1976).
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NO. 73761-9-1/7
issue.'"18 	In Gilcrist, the trial court compelled the defendants to appear "in sports
coats, slacks, ties and shirts."19 	The Supreme Court held the defendants did not
have a constitutional right to select their own clothing for trial and, noting the trial
court's reasonable explanation, affirmed its judgment.20
Here, 	as 	in 	Gilcrist, 	the 	trial 	court's 	decision 	did 	not 	create 	an
unacceptable risk of prejudice.21 	Compelling Caver to wear civilian clothes did
not erode the "physical indicia of [his] innocence," as requiring him to wear jail
clothes or shackles would.22 	It did the opposite by making him appear as any
member of the public.23 	Similarly, civilian clothes did not single Caver out "as a
particularly dangerous or guilty person."24 	And civilian clothes did not offend the
dignity of the judicial process or restrict Caver's ability to assist counsel and
testify.25 	Because 	the 	trial 	court's 	decision 	created 	no 	risk 	of 	bringing
"impermissible factors" into play for the jury, that decision was 	not inherently
prejudicial. Thus, we decline to apply the close scrutiny Caver argues for.
We instead conclude that the trial court did not abuse its discretion. 	It
reasonably determined that 	allowing 	Caver to wear jail clothes would cause
18 Gilcrist, 91 Wn.2d at 610 (quoting Estelle, 425 U.S. at 502).
19 Gilcrist, 91 Wn.2dat610.
20 Gilcrist, 91 Wn.2dat610.
21 See Estelle, 425 U.S. at 504-05.
22 See Finch, 137 Wn.2d at 844.
23 See Gilcrist, 91 Wn.2d at 610.
24 See Finch, 137 Wn.2d at 845.
25 See Finch, 137 Wn.2d at 845.
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NO. 73761-9-1/8
"much mischief." 	As the trial court explained, this attire could cause the jury to
speculate about why Caver was in jail and whether he was dangerous.
The 	trial court 	did 	not need to engage Caver in a 	colloquy or make
findings on the record before requiring him to appear in civilian clothes. 	These
procedural safeguards are necessary to protect constitutional rights, including a
defendant's 	right to counsel and a prisoner's "liberty interest in avoiding the
unwanted administration of antipsychotic drugs."26 	Caver can show no such right
to appear in jail clothes. 	He contends that the trial court's decision violated his
right to present a complete defense by 	undermining 	his 	credibility 	and not
allowing 	him 	"to 	be 	as 	honest 	as 	possible 	with 	the 	jury 	about 	his
circumstances"—but that right does not include a right to appear in jail clothes.
The link between Caver's jail attire and his truthfulness, which he contends the
jury would make, defies "reason, principle, and common human experience."27
And Caver fulfilled his stated objective in wearing jail clothes—letting the jury
know "what's really going on in [his] life"—by telling them about his experiences.
His opportunity to testify satisfied any interest he had in appearing candid with
the jury.
26 Washington v. Harper, 494 U.S. 210, 221-22, 110 S. Ct. 1028, 108 L
Ed. 2d 178(1990).
27 Estelle, 425 U.S. at 504.
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NO. 73761-9-1/9
Finally, courts' observations that defendants sometimes choose to wear
jail clothes as a trial tactic do not imply that defendants have a right to do so.28
As discussed above, no such right exists, and a trial court can restrict that choice
so long as it does not abuse its discretion. 	Accordingly, we hold that the trial
court did not err in requiring Caver to wear civilian clothes at trial.
Evidentiary Rulings
Caver also contends that the trial court erred in excluding testimony about
his attempts to get treatment in jail.
We 	review 	a 	trial 	court's 	decision 	to 	exclude 	evidence for 	abuse 	of
discretion.29 	A criminal 	defendant's 	right to 	present 	a 	defense 	extends 	to
"'relevant 	evidence 	that 	is 	not 	otherwise 	inadmissible.'"30 	But 	"a 	criminal
defendant has no constitutional right to have irrelevant evidence admitted in his
or her defense."31 	Evidence is relevant where it has "any tendency to make the
existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence."32
28 See Estelle, 425 U.S. at 507-08; Felts v. Estelle, 875 F.2d 785, 786 (9th
Cir. 1989).
29 State v. Atsbeha, 142 Wn.2d 904, 913-14, 16 P.3d 626 (2001).
30 State v. Mee 	Hui Kim, 	134 Wn. App. 27, 41, 	139 	P.3d 354 (2006)
(quoting State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992)).
31 State v. Hudlow, 99 Wn.2d 1, 15, 659 P.2d 514 (1983).
32ER401.
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NO. 73761-9-1/10
Here, the trial court allowed Caver to testify that he called 911 multiple
times seeking treatment and about his unsuccessful attempts to get treatment
when he was in jail after his arrest. 	The trial court sustained the State's objection
only when his counsel continued down that path, asking about a specific person
Caver talked to in his effort to obtain in-jail treatment.
The trial court did not exclude any relevant evidence. 	The State charged
Caver 	with 	possession 	of 	methamphetamine, 	a 	crime 	with 	two 	elements:
possession of methamphetamine occurring in Washington. 	Caver's defense at
trial was unwitting possession: 	in short, that he would not have called 911 if he
had known he still had meth in his pocket.33 	Caver's proposed testimony about
his specific attempts to obtain treatment after his arrest could not have "any
tendency" to make any fact of consequence to the drug possession charge or
unwitting possession defense "more or less probable," as Caver made those
attempts after the crime and arrest occurred.34
Appellate Costs
Finally, Caver contends that this court should not impose on him the costs
of his appeal. 	The trial court found Caver indigent and waived all discretionary
33 As 	the trial court noted, 	Caver's was a 	dubious case for 	unwitting
possession, since he admitted the meth was his but simply thought he did not
have any left when he called 911. 	Nonetheless, 	the trial court allowed the
defense instruction.
34ER401.
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NO. 73761-9-1/11
legal financial obligations. 	Caver asserts that imposing costs on 	an indigent
appellant is contrary to law. 	He asserts, alternatively, that this court should
exercise its discretion not to impose appellate costs against him.
"The commissioner or clerk 'will' award costs to the State if the State is the
substantially 	prevailing 	party 	on 	review, 	'unless 	the 	appellate 	court 	directs
otherwise in its decision terminating review. "'35 	When a party raises the issue in
its brief, we will exercise our discretion to decide if costs are appropriate.36 	We
base our decision 	on 	factors the 	parties set forth 	in their briefs rather than
remanding to the trial court.37
An indigent defendant "'does not have ... a right to an appeal at public
expense, if he [or she] can afford to pay for that appeal'" by the time the State
enforces collection or sanctions the defendant for nonpayment.38 This court has
thus 	declined, 	as 	a 	matter of 	course, 	to 	waive 	appellate 	costs for 	indigent
35 State v. Sinclair, 192 Wn. App. 380, 385-86, 367 P.3d 612 (quoting RAP
14.2), review denied 185 Wn.2d 1034 (2016).
36 Sinclair, 192 Wn. App. at 388-90.
37 Sinclair, 192 Wn. App. at 389-90. 	As with requests for attorney fees on
appeal, "a short paragraph or even a sentence" would be sufficient. 	Sinclair, 192
Wn. App. at 390. The parties provide such arguments here.
38 State v. Nolan, 	98 	Wn. App. 	75, 	80, 	988 P.2d 473 (1999) (second
alteration in original) (internal quotation marks omitted) (quoting State v. Blank,
131 Wn.2d 230, 250, 930 P.2d 1213 (1997)). 	'"[RCW 10.73.160] simply provides
a mechanism for recouping the funds advanced to ensure [the defendant's] right
of appeal.'" 	Nolan, 98 Wn. App. at 80 (internal quotation marks omitted) (quoting
Blank, 131 Wn.2d at 250).
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NO. 73761-9-1/12
defendants.39 We instead conduct an "individualized inquiry" into the defendant's
present and likely future ability to pay.40 	Unless a trial court finds that an indigent
defendant's 	financial 	condition 	has 	improved, 	we 	presume 	the 	defendant
continues to be indigent.41 	This present ability to pay is one factor in this court's
decision 	whether 	to 	impose 	costs, 	but 	it is 	not 	the 	only 	factor, 	"nor 	is 	it
necessarily an indispensable factor."42
In State v. Sinclair,43 this court denied appellate costs to the State. 	The
trial court had ruled the defendant indigent. 	The trial court did not find, and the
State presented no evidence on appeal, that the defendant's financial condition
was 	likely 	to 	improve. 	This 	court 	therefore 	presumed 	that 	the 	defendant
remained indigent. 	This court further saw "no realistic possibility," given that the
defendant was 66 years old and received a 280-month prison sentence, that he
would be able to pay appellate costs.44
39 Sinclair, 192 Wn. App. at 391; 	Nolan, 98 Wn. App. at 80; see also
Blank, 131 Wn.2d at 252-53. 	"To decide that appellate costs should never be
imposed as a matter of policy no more comports with a responsible exercise of
discretion than to decide that they should always be imposed as a matter of
policy." Sinclair, 192 Wn. App. at 391.
40 Sinclair, 192 Wn. App. at 391.
41 RAP 15.2(f).
42 Sinclair, 192 Wn. App. at 389.
43 192 Wn. App. 380, 393, 367 P.3d 612, review denied, 185 Wn.2d 1034
(2016).
44 Sinclair, 192 Wn. App. at 393.
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NO. 73761-9-1/13
In contrast, the Supreme Court determined in State v. Blank45 that denying
the State's appellate cost request would be premature. There, as in Sinclair, the
defendant was indigent and incarcerated. 	But unlike Sinclair, the record in Blank
did not support the defendant's speculation that he would be unable to pay in the
future. 	The 	court 	reasoned 	that "[i]f in the future 	repayment will 	impose a
manifest hardship on defendant, or if he is unable, through no fault of his own, to
repay, [RCW 10.73.160(4)] allows for remission of the costs award."46
Here, the trial court found Caver indigent for purposes of appeal and
authorized payment of his costs and fees by the State. 	Because, as in Sinclair,
the 	State 	has 	presented 	no trial 	court order finding 	that Caver's financial
condition has improved or is likely to improve, we presume that Caver remains
indigent. 	But, as in Blank, the record contains no information about Caver's likely
future ability to pay, notwithstanding his present indigency.47 	He is only 53 years
old 	and was 	in 	jail for 	only 	90 days. 	Unlike 	Sinclair, 	there is a 	"realistic
possibility" on the slim record now before the court that Caver will be able to pay
costs in the future.48 	Accordingly, we decline to deny the State costs as the
prevailing party on appeal.49
45 131 Wn.2d 230, 252-53, 930 P.2d 1213 (1997).
46 Blank, 131 Wn.2dat253.
47 See Blank, 131 Wn.2d at 253.
48 See Sinclair, 192 Wn. App. at 393.
49 RAP 14.2.
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NO. 73761-9-1/14
This does not leave Caver without relief if he cannot pay.50 	Former RCW
10.73.160(4) (1995) allows the sentencing court to remit costs to the defendant if
payment would "impose manifest hardship on the defendant [or] the defendant's
immediate family."51
CONCLUSION
Because compelling 	Caver to wear civilian clothes was 	not 	inherently
prejudicial and the trial court based its decision on tenable grounds, the trial court
did 	not abuse 	its discretion 	in denying 	Caver's 	request to wear jail clothes.
Because evidence about Caver's efforts to obtain drug treatment in jail were not
relevant, the trial court properly excluded that evidence. 	And because there is a
realistic possibility that Caver will be able to pay appellate costs and Caver can
challenge those costs if he cannot afford to pay if and when the State attempts to
collect them, we 	decline Caver's request that we 	deny the State costs. 	We
affirm.
WE CONCUR:
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50 See Blank, 131 Wn.2d at 242.
51 Nolan, 98 Wn. App. at 79.
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